Trial testimony: Hillary Clinton's campaign did not authorize the FBI meeting at crux of case against lawyer with Democratic ties

• A top Democratic lawyer took the stand in the first trial stemming from John Durham's investigation.
• Marc Elias said the Clinton campaign never authorized the FBI meeting at issue in the prosecution.

The top lawyer for Hillary Clinton's 2016 campaign labeled Donald Trump a litigious "bully" on Wednesday and recalled feeling "under attack" from Russia's hack of the Democratic National Committee, in trial testimony that reflected on the bitterly contested presidential race.

Marc Elias, a prominent Democratic lawyer and voting rights advocate, took the witness stand in the first trial stemming from Trump-era special counsel John Durham's inquiry into the origins of the Russia investigation. Durham's office called Elias to testify against another lawyer with Democratic ties, Michael Sussmann, who was charged last year with lying to the FBI in connection with a 2016 meeting where he presented internet data purporting to show suspicious contact between servers for the Trump Organization and a Russia-based bank.

Prosecutors allege that Sussmann misled the FBI's top lawyer at the time, James Baker, by stating that he was not representing any client when he was, in fact, seeking the meeting on behalf of the Clinton campaign and a tech executive who'd provided him the internet data. But, under questioning from Sussmann's defense lawyer, Elias said neither he nor anyone associated with the Clinton campaign had not authorized the meeting at the crux of Sussmann's prosecution.

Elias said he would not necessarily have seen the meeting as a "good thing" for the Clinton campaign as it sought press coverage of the internet data. The FBI, he said, had not been "particularly helpful" in investigating Russia's hack of the Clinton campaign and Democratic National Committee or taking steps to prevent the ensuing leak of emails.

During that time period, Elias added, then-FBI Director James Comey had taken public stances he considered unfair and viewed as "putting a thumb on the scale against Secretary Clinton."

"I'm not sure I would have thought that the FBI was going to give a fair shake to anything they thought was anti-Trump or pro-Clinton," Elias said.

Elias recalled feeling "under attack" from Russia's hack of the Clinton campaign and the Democratic National Committee. And he took note of the strategic release of politically damaging emails, which was time just before that year's Democratic National Convention.

It was, he said, "wholly an effort by Russia to ruin what is the one clean shot candidates get to talk to the American public."

Elias added: "Rather than doing what any decent human being might do," Trump openly invited Russia to find unreleased emails from Clinton's tenure as secretary of state under the Obama administration.

Recounting his work with the Clinton campaign more broadly, Elias said he was mindful during the 2016 election of Trump's reputation for being "infamously litigious." During the Republican primary, he said, Trump had threatened to sue former Florida Gov. Job Bush and Sen. Marco Rubio.

"Donald Trump was a bully who used litigation as a tactic," Elias said, "whether it be in business or in politics."

From the first day of the trial, the federal judge presiding over the prosecution emphasized that the court proceeding was not meant "to re-litigate the 2016 election."

"Donald Trump is not on trial. Hillary Clinton is not on trial," said Judge Christopher "Casey" Cooper, echoing similiar remarks from prosecutors and defense lawyers in the questioning of jurors.

But Elias' testimony underscored how the trial will nonetheless — perhaps inevitably — air lingering grievances from an election that played out six years ago.

Elias' testimony also appeared to put distance between Sussmann and the Clinton campaign, bolstering the defense's argument. During opening arguments Tuesday, Sussmann's defense lawyer Michael Bosworth said the FBI meeting was the "opposite" of what the campaign would have wanted in September 2016 and described the theory of Durham's case as "nonsensical."

Bosworth said Sussmann sought the meeting only to help the FBI and keep the agency from being caught flat-footed with a story the New York Times was preparing about the internet data.

Durham's office has seized on billing records to show that Sussman was, in fact, acting on the Clinton campaign's behalf when he met with Baker, the FBI general counsel, in September 2016. But when asked directly whether Sussmann went into the meeting out of a civic duty or on the Clinton campaign's behalf, Elias said, "I think you'd have to ask Mr. Sussmann."

A prosecutor from Durham's office, Andrew DeFilippis, later asked Elias what — aside from asking Sussmann himself — could indicate whether he was representing a client at the September 2016 meeting.

"Billing records are a reasonable way to go," Elias answered.

The line of questioning appeared to cross a line for Sussmann's defense lawyer Sean Berkowitz, who suggested that it inappropriately addressed whether Sussmann would testify in his own defense. It is unclear whether Sussmann will take the stand, but he has a right not to testify and for the jury not to hold that decision against him.

Berkowitz indicated that he would consider overnight whether to seek a mistrial.

DeFilippis defended his questioning. And at the end of the day's proceedings, Cooper cautioned that he was
"not inclined to grant a mistrial."