Michael Sussmann and John Durham.
An elite lawyer connected to the Democratic Party and the former election campaign of Hillary Clinton appeared virtually in court Thursday morning to convince a judge that a charge brought against him by Special Counsel John Durham should be thrown out of court.
Durham last September secured a single-count indictment against Michael Sussmann, a high-profile Perkins Coie cybersecurity lawyer. Sussmann was accused of allegedly “mak[ing] a materially false, fictitious, and fraudulent statement or representation” before an Executive Branch agency, namely, the General Counsel of the FBI (who at the time was James Baker). The crime alleged is a purported violation of 18 U.S.C. §1001(a)(2). Sussmann has pleaded not guilty to the charge.
“The defendant provided the FBI General Counsel with purported data and ‘white papers’ that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank,” Durham’s team wrote in a previous court document. Sussmann is accused of breaking the law by claiming “he was not providing the allegations to the FBI on behalf of any client,” the Durham team has argued, when he was “[i]n fact” giving the information “to the FBI on behalf of at least two specific clients,” one of which was the Hillary Clinton campaign.
The bank has since been identified as the Alfa Bank, and Trump’s communications with it were “later investigated by the FBI but determined not to be nefarious,” ABC News has previously reported.
Sussmann’s attorneys have argued via court documents (1) that Sussmann did not lie; and (2) that even if he did, the lie about the nature of his clients was not “materially false” under the strict letter of the aforementioned statute.
During a lengthy hearing Thursday which was designed to suss out those arguments, attorneys for Sussmann reasserted that the alleged lie was not material and therefore could not form the basis of a federal criminal prosecution.
“Yes, your honor; good morning,” Sussmann responded when asked by U.S. District Judge Christopher R. Cooper whether he consented to proceed by video. Present were his attorneys and Durham’s attorneys for the U.S. Department of Justice.
“This is an unprecedented false statement prosecution,” Sussmann’s attorney Michael Bosworth told Judge Cooper on Thursday. They called the allegedly false statement “ancillary” to the “tip itself” and said Sussmann’s team was stretching the “materiality” requirement of the requisite statute. Sussmann’s team added that statements cannot have “evergreen materiality.”
Judge Cooper asked attorneys whether Baker (of the FBI) directly asked Sussmann whether he was working for a client or whether Sussmann volunteered that information.
Sussmann’s attorneys said the information was volunteered by Sussmann himself in the “first instance” and that he was not directly probed on the matter by Baker.
In other words, Baker didn’t probe the nature of Sussmann’s clients. Therefore, per Sussmann’s team, there is strong evidence that the alleged lie at issue in this case is “ancillary” and not “material.”
Sussmann’s team said the fact that Durham charged the “respected” attorney Sussmann was “astonishing” given the alleged trivial matter of the nature of his clients. Bosworth asserted that allowing the prosecution to continue would result in a “chilling effect” on tips to the FBI by other concerned parties in the future.
Judge Cooper probed the matter further. Bosworth said the tip was not about — for instance — a possible bank robbery that might take place at some point in the future. In that type of tip, according to Bosworth, the underlying data about the tipster’s connection to the information — where the tipster heard it, when the tipster heard it, and via what connections the tipster heard it — would be relevant in ascertaining whether the tip was credible. Here, however, Bosworth said Sussmann was merely providing raw, recorded data which stood for itself regardless of how and by whom it was compiled.
A presumably skeptical Judge Cooper probed again. He asked if it was relevant that the “data [was] developed at the request of a competing presidential candidate.”
Bosworth replied that it was not relevant because the data could have been examined by federal agent on its face — regardless of where it came from.
Durham’s team has alleged that the FBI would have viewed the data provided by Sussmann with considerable skepticism had it known Sussmann was providing it in connection with the Democrats and with Hillary Clinton, a then-rival candidate to Donald Trump.
During the hearing, Andrew DeFilippis, a federal prosecutor and a member of Durham’s team, pointed directly to the indictment itself as to why the alleged lie was material. DeFilippis argued that Sussmann “caused” the FBI to open an investigation by failing to clarify the nature of his clients or where his data originated. DeFilippis said it was always important for the FBI to know where the raw data came from.
“Attorneys can bring anything to the government, as long as they’re forthright,” DeFilippis said.
Judge Cooper and the attorneys verbally jostled theories of whether any logical FBI investigator would have naturally and automatically probed the nature of Sussmann’s connections and clients while looking into the data presented. DeFilippis posited that Sussmann mollified the FBI into launching an investigation by hiding the nature of his clients and pointing to the data itself — something the FBI would have probed had Sussmann not quieted those concerns by sidestepping his own political connections.
DeFilippis also reasserted that the information Sussmann gave to the FBI was politically explosive and should have come with a proverbial warning label that it originated from connections to a rival candidate, e.g., Clinton and her supporters and surrogates. Observers dismissed that argument because highly charged information would likely result in an FBI probe regardless of the motivations of the person who provided it, in their view.
The judge said he would take the motions to dismiss the case under advisement and would rule on them at a later date.
The judge and the attorneys then hashed out questions of privilege being asserted by the Clinton campaign — all of which are likely headed for additional hearings despite attempts by the parties to work things out on their own. Some observers suggested that the judge’s focus on additional arguments and information suggest he is disinclined to agree with Sussmann’s team that the case should be dismissed.
A trial is scheduled for May 13, according to the court docket.
The Sussmann motion to dismiss and the Durham motion in opposition are both below:
[Image of Sussmann via YouTube screengrab; image of Durham via DOJ portrait.]
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