Clinton Lawyer Attempts to Have Durham Prosecution Dismissed as Evidence Mounts
Attorneys for Hillary Clinton campaign lawyer Michael Sussmann filed a motion on Thursday to dismiss the case being brought against him by special counsel John Durham, claiming the false statements he made to the FBI were “immaterial.”
In the motion to dismiss, Sussmann’s legal team described the single count of making false statements against its client as “a case of extraordinary prosecutorial overreach.”
Sussmann’s indictment, filed by Durham last fall, alleges that the lawyer submitted three “white papers” along with data files to then-FBI General Counsel James Baker in September 2016, less than two months before the presidential election, claiming they contained information of a secret communication channel between then-Republican candidate Donald Trump’s business, the Trump Organization, and Alfa Bank, which has ties to the Russian government, Fox News reported.
The indictment states that Sussmann told Baker he was not working “for any client,” leading the FBI official to believe Sussmann “was acting as a good citizen merely passing along information, not as a paid advocate or political operative.”
In fact, he was working for the campaign of Democratic nominee Clinton via his employment at the Washington law firm Perkins Coie, listed as “Law Firm-1” in the indictment.
In their motion to dismiss, Sussmann’s attorneys argued, “It has long been a crime to make a false statement to the government. But the law criminalizes only false statements that are material –false statements that matter because they can actually affect a specific decision of the government.”
But false statements “about ancillary matters” are “immaterial and cannot give rise to criminal liability,” they said.
The lawyers went on to contend that Durham needed to allege the information Sussmann passed along included false material rather than their client not stating that he was working for the Clinton campaign.
“Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here,” Sussmann’s legal team said.
They further argued that he met “voluntarily” with the FBI when he made the tip to “pass along information that raised national security concerns.”
“Allowing this case to go forward would risk criminalizing ordinary conduct, raise First Amendment concerns, dissuade honest citizens from coming forward with tips, and chill the advocacy of lawyers who interact with the government,” his lawyers said.
Last week, Durham submitted an additional filing in the case further detailing Sussmann’s false statements not only to the FBI but also to “Agency-2,” reportedly the CIA, in his efforts to link Trump to Russia.
Sussmann worked with “Tech Executive-1” — cyberexpert Rodney Joffe, according to Fox News — to gather data from computer servers at Trump Tower, Trump’s Central Park West apartment building and later the White House, after Trump became president.
In Sussmann’s meeting with Agency-2, Durham said, he “provided data which he claimed reflected purportedly suspicious DNS [domain name system] lookups by these entities of internet protocol (IP) addresses affiliated with a Russian mobile phone provider” and claimed that the lookups “demonstrated Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations.”
“The Special Counsel’s Office has identified no support for these allegations,” Durham wrote.
“In his meeting with Agency-2 employees, the defendant also made a substantially similar false statement as he made to the FBI General Counsel,” he said. “In particular, the defendant asserted that he was not representing a particular client in conveying the above allegations.
“In truth and in fact, the defendant was representing Tech Executive-1 — a fact the defendant subsequently acknowledged under oath in December 2017 testimony before Congress, without identifying the client by name.”
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