“That suggestion implicates Mr. Sussmann’s Fifth Amendment right not to testify in his own defense, and Mr. Sussmann was deeply prejudiced by Mr. Elias’s comments and the Special Counsel’s efforts to double down on those comments,” Sussmann’s lawyers wrote in the filing.
Sussmann’s lawyers said in court earlier Wednesday they would seek a mistrial, but Judge Christopher Cooper said he was “not inclined” to grant their request. In the filing, Sussmann’s team said Cooper could also fix the issue by striking the problematic material from the record.
Cooper said from the bench on Thursday morning that he will strike some portions of the court record, granting part of Sussmann’s request.
The defense lawyers also said Sussmann hasn’t decided whether he’ll testify in his own defense. They are preparing to put on a defense case with a handful of fact witnesses and character witnesses.
After the possibility of a mistrial was raised in court, special counsel prosecutors told the judge they chose their words carefully and didn’t try to elicit problematic testimony from Elias.
Prosecutors called Elias to the stand, but it was the defense attorneys who spurred him to make the comment in question. They asked if he knew whether Sussmann went to the FBI “on behalf of the (Clinton) campaign” in September 2019, with a tip about Donald Trump’s ties to Russia.
“I think you’d have to ask Mr. Sussmann,” Elias said. “I mean … I don’t know. From my standpoint, I would say no. But ‘on behalf of’ is kind of like a subjective-intent thing.”
Sussmann pleaded not guilty to one felony count of lying to the FBI. Durham says Sussmann falsely claimed that he wasn’t representing the Clinton campaign when he met with the FBI’s general counsel and provided a tip about Trump’s potential ties to a prominent Russian bank.
This story has been updated with additional details.