Yesterday a jury was assembled in the case of Michael Sussmann and today the jury heard opening arguments from both sides and some testimony in the case. As was the case Monday during jury selection, John Durham was at the trial today but didn’t speak. Prosecutors began by claiming Sussmann had used his personal connections in an attempt to use the FBI as a political tool.

Assistant Special Counsel Deborah Shaw told jurors that Sussmann took advantage of his relationships with the FBI and its then-general counsel James Baker to plant data about a potential Trump tie to Russia while hiding the fact that Sussmann was acting on behalf of the Clinton campaign.

This is a case about privilege … the privilege of a lawyer who thought that for the powerful the normal rules didn’t apply, that he could use the FBI as a political tool,” Shaw said in her opening statement in U.S. District Court. “The defendant lied to direct the power and resources of the FBI to his own ends and to serve the agendas of his clients.”

Shaw said Sussmann and the Clinton campaign hoped that the FBI would jump on Sussmann’s report and launch an investigation that would embarrass Trump as voters prepared to go to the polls.

It was a plan to create an October Surprise on the eve of the presidential election — a plan that used and manipulated the FBI ……a plan that largely succeeded,” Shaw declared.

Sussmann’s defense attorney rejected the idea that he was privileged and claimed his meeting with the FBI was not something the Clinton campaign wanted.

Sussmann’s lawyer, Michael Bosworth, told the jury on Tuesday that the case wasn’t about privilege but long-term relationships that Sussmannhad as a former Justice Department prosecutor.

Sussmann’s meeting with the FBI’s top lawyer, James Baker, was not what the Clinton campaign or Joffe wanted, Bosworth said. But Sussmann did it anyway, Bosworth said, because he felt the FBI deserved a heads-up that a news story on the alleged connections between the bank and the Trump Organization was likely to be published soon in the New York Times.

“Relationships matter, especially in the small world of national security lawyers,” Bosworth said. “Do you think Mr. Sussmann would throw his career away, his life away, to tell a lie to that guy?”

Bosworth ridiculed the argument by prosecutors that the FBI didn’t understand who Sussmann’s clients were, showing jurors internal FBI emails and reports that were “littered” with references to Sussmann as a lawyer for Democrats. He said any witnesses who claimed otherwise were being less than accurate.

I genuinely don’t understand how this defense is supposed to work. The FBI may have known that Sussmann was, generally speaking, a lawyer for Democrats. But in this particular instance he came to them saying he was acting as a concerned citizen, not as a partisan lawyer. In other words, he was explicitly asking them to forget about who he’d worked for in the past. And then he went home and billed the meeting to the Clinton campaign.

Now his defense attorney seems to be arguing the FBI couldn’t possibly have been dumb enough to believe him. His defense boils down to that old line from Animal House: “You f**ked up! You trusted us.” I guess we’ll have to wait and see if the jury buys that.

Meanwhile, over at National Review, Andrew McCarthy argues the defense may have already made a serious mistake. The data that Sussmann conveyed to the FBI was generated by Rodney Joffe (aka Tech Executive-1). There’s lots of evidence that the data was junk. The FBI found there was nothing to it and the CIA also looked at it and was even more skeptical:

After Sussmann brought the agency an update version of the data in February 2017, its analysts concluded that the information was not “technically plausible,” did not “withstand technical scrutiny,” “contained gaps,” “conflicted with [itself],” and was “user created and not machine/tool generated.”…

In his pretrial ruling, Judge Christopher Cooper precluded Durham from showing the jury most of his evidence about the data’s flaws, but only on the Sussmann defense’s representation that it would not claim that the data were accurate.

Now, in his opening statement, Sussmann’s lawyer Bosworth has told the jury that, because of Joffe’s expertise, on which Sussmann supposedly relied exclusively, Sussmann had every reason to believe the data really did show a Trump–Russia connection. It’s subtle, but that is different from telling the jury he did not assess the data himself.

It is a subtle point but to some degree it matters whether the data Sussmann presented was real evidence or just suspicious junk. The defense would understandably like to claim it was the former but to the degree they do that, the prosecutors should be entitled to prove it was actually the latter.