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February 18, 2022

Michael Sussmann’s attorneys at Latham & Watkins –- the firm that has also represented the Hillary campaign, Hillary for America, The Clinton Foundation, Marc Elias, the law firm Perkins Coie, and seemingly just about everybody else being looked at by Durham –- have filed two motions this week, one on Monday requesting that Durham’s “Factual Background” on the case be stricken from his motion filed last Friday, and the other yesterday for a dismissal of the charge against Sussmann. In essence, they’re saying, “Our client did NOT LIE! And even if he did, his lie wasn’t material to the overall case, so it’s not actually criminal.” Pretty amusing, really. says “a closer look at the request shows it to be much more of a desperate heave into the end zone than a play expected to succeed.”

Sussmann’s attorneys call the case “extraordinary prosecutorial overreach” and even say the indictment “fails to state an offense.” They write, “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.” False statements about “ancillary matters” are “immaterial and cannot give rise to criminal liability.”

Amazingly, they’re telling Durham that Sussmann was visiting the FBI and the CIA just to give “tips” (actually the fake Alfa Bank story) and that the fact he was working for --- and billing --- the Clinton campaign was immaterial. “Allowing this case to go forward would criminalize ordinary conduct,” the motion says, “raise First Amendment concerns, dissuade honest citizens from coming forward with tips, and chill the advocacy of lawyers who interact with the government.” Oh, goodness, surely the special counsel wouldn’t want to criminalize ordinary conduct, like peddling a fake story to federal investigators and lying to them about why!

It sure looks like a last-ditch effort to us. This is what you use when you don’t have anything else.

As for trying to get the case dismissed, RedState points out that it’s the defense’s job to try to do that. They predictably came up with a way, but one that’s not compelling. “The existence of this motion does not in any way serve as evidence that Durham’s case against Sussmann is specious,” ‘Bonchie’ says. “In fact, a closer look at the filing shows it to be incredibly weak.”

How could Sussmann’s tip about Alfa Bank be “ancillary” to the FBI’s decision to investigate Trump, Russia and Alfa Bank? By presenting himself as a tipster, not a Clinton campaign lawyer –- which involved lying in answer to a direct question –- he made himself and his allegations seem more credible. And that would be, or at least should be, extremely material to the FBI’s decision on whether to open an investigation.

As RedState reminds us, Michael Flynn’s so-called “lie” to the FBI “did not appear to be material about much of anything,” and George Papadopoulos’s simple mix-up of dates didn’t, either, yet both of them were prosecuted. Those examples set the bar very low for a statement being “material.”

Sussmann’s attorneys also argued that Durham had used false and irrelevant allegations “plainly intended to politicize this case, inflame media coverage, and taint the jury pool.” Apparently, Durham was expecting these arguments to be made.

RedState cautioned that left-leaning “legal analysts” should wait until Durham has had a chance to respond before rushing to praise the defense’s motion to dismiss.

At the time of this writing, we’re still waiting on that response, but news broke Thursday evening about his no-nonsense response to the motion Sussmann’s attorneys filed earlier, the one to strike Durham’s “Factual Background” on the case.

“This court should deny the defendant’s motion,” Durham said. “If third parties or the media have overstated, understated, or otherwise misinterpreted facts contained in the government’s motion, that does not in any way undermine the valid reasons for the government’s inclusion of this information...Moreover, any potential prejudice or jury taint arising from such media attention can effectively and appropriately be addressed through the voir dire process during jury selection.”

We would add that this is the job of attorneys for both sides during jury selection. There will be plenty of media attention knocking the Durham investigation --- arguably much more than we’ll see that's positive --- so doesn’t that “taint” the jury pool as well?

Sussmann’s motion on Monday said that Durham’s allegations in the “Background Information” section of his filing last Friday, such as Rodney Joffe’s use of a “special arrangement” to obtain data from otherwise highly secure email servers for the President’s office, should be stricken. But Durham, in his response on Thursday, confidently defended his use of those details:

“The government included two paragraphs of limited additional factual detail in its motion for valid and straightforward reasons,” he wrote. “First, those paragraphs reflect conduct that is intertwined with, and part of, events that are central to proving the defendant’s alleged criminal conduct. Second, government included these paragraphs to apprise the court of the factual basis for one of the potential conflicts described in the government’s motion, namely that a member of the defense team was working for the Executive Office of the President of the United States during relevant events that involved the EOP [Executive Office of the President].”

Even with the explanation from Durham, Margot Cleveland wondered aloud on Thursday why he was being so forthcoming about certain facts in the case. “Why is Durham telling us this?” she asked. She said that if he had a nefarious reason, he would have done as the Mueller team did and leak selectively to friendly outlets. But Durham hasn’t been leaking at all.

She postulated that by putting some details of what he has in these motions, he “might prompt cooperation in a way that plea negotiations can’t.” Or perhaps he’s trying to make somebody nervous and incriminate himself. Or he hopes that by showing some of his cards, he’s making it “politically impossible” for the Biden administration to shut him down.

Or he’s trying to rattle the government by showing he’s a step ahead, as with IG Horowitz’ office after it failed to turn over cell phone evidence. Or he’s trying to keep “we the people” informed. Or it’s all of the above.

The DC Circuit Court generally looks with disfavor on motions to strike, she said, so it doesn’t look good for Sussmann’s defense on that. On the other hand, “How the court will rule is anyone’s guess at this point, but we will likely see a counter from Special Counsel Durham’s office first –- and maybe a few more hints on what is to come as well.”

Whenever we find ourselves generally on the same track with Margot Cleveland, we know we as non-lawyers are doing a pretty good job of sorting all this out. Read her analysis, and your legal IQ will go up about 50 points.

And something fall-down-funny she noticed: Sussmann’s lawyers actually cite Peter Strzok!

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