The acquittal of Clinton campaign lawyer Michael Sussmann has been the subject of furious debate among politicians and pundits. Some have argued that the case collapsed from lack of evidence while others have alleged that prosecutors faced as biased judge and jury. For his part, Sussmann claimed that the jury found that “I told the truth.” The truth is more complex and few would assume that the verdict was based on Sussmann’s veracity. However, a statement from a juror immediately after the verdict fueled speculation of the impact of juror bias. According to the Washington Times’ Jeff Mordock, the juror reportedly said “I don’t think it should have been prosecuted. There are bigger things that affect the nation than a possible lie to the FBI.” If that statement had been made during voir dire, it is likely that the juror would have been challenged.
Before the verdict, some of us noted the adverse elements for the prosecution. Few would honestly question that trying a Clinton campaign lawyer in a city that voted over 90 percent for Clinton was not an advantage for the defense. The same is true for some cases tried in conservative areas. In this case, prosecutors challenged some jurors but were overruled by Judge Christopher Cooper. I believe that the court was wrong on a couple of those rulings. In the end, the prosecution was faced with a jury that contained three Clinton donors, an AOC donor, and a woman whose daughter played on the same team as Sussmann’s daughter. As I previously said, that does not mean that the jurors could not be impartial.
The prosecutors were also hit with a series of adverse rulings by the judge that limited the scope of evidence and examinations. That denied the prosecution the ability to show how the campaign knowingly pushed unsupported claims.
Nevertheless, I noted at the outset that “this is not an easy case to prove.” There was overwhelming evidence, in my view, that Sussmann lied to conceal his work with the Clinton campaign. Yet, the defense did a good job in attacking elements like materiality in how the allegedly false statement impacted the FBI.
The juror statement is not something that is likely to be raised with the court. The juror could have still rendered an unbiased decision despite viewing the prosecution as much to do about nothing. If such a statement were made during voir dire, it would have been viewed as more serious as a preexisting view that could impact the impartiality of the juror.
In the end, there is no proof of actual juror nullification. While the evidence of lying seems overwhelming to some of us, there were interstitial questions on how the lying impacted the investigation. Yet, I believe that the court undermined the prosecution in a number of its rulings. Moreover, there is a legitimate concern over how this trial was handled as opposed to the trial of figures like Michael Flynn in the same courthouse.
The more important issue following this verdict is whether Special Counsel John Durham will be allowed to release a public report on his overall findings. Democrats previously demanded such a report from Special Counsel Robert Mueller. Some even demanded the release without redactions, including grand jury material. In the end, a report was released with a comparably small number of redactions. The same should be true with Durham. This trial resulted in the release of new information, but it is clear that Durham was strictly limited in what he could reveal at trial. The public has a legitimate interest in a full account of these findings, as it did after the Mueller investigation.