Attorneys for Clinton lawyer Michael Sussmann, indicted for lying to FBI General Counsel James Baker when he said he was acting on his own in offering the Alfa Bank story, have been trying like heck to get the charge dismissed. That’s their job, of course, and their law firm of Latham and Watkins has been working overtime representing a number of Hillary cronies, such as Perkins Coie and Marc Elias, caught up in her mess.
When their first argument didn’t work on presiding U.S. District Judge Christopher Cooper, they went for Take 2, this time maintaining that the statute against lying, Section 1001, applies only to lies that are “materially” false. They claim this alleged lie is immaterial to Durham’s case.
As Margot Cleveland at The Federalist explains, “Sussmann had attempted to avoid criminal prosecution by claiming that because the FBI would have investigated his “tip” no matter what he had told Baker about his clients (or lack of clients), the lie was immaterial.” The judge rejected that argument, made two weeks ago, on Wednesday.
We would add that when he told them he was not representing clients, he was saying this regarding what his lawyers laughably called a “tip” but that was just a concoction, not a real tip. So the “tip” is actually a lie on top of a lie, though not part of the charge Special Counsel John Durham has chosen to pursue. Durham has Perkins Coie billing records to show that when Sussmann met with the FBI, he was indeed representing Hillary and also Rodney Joffe, who had organized the creation of the Alfa Bank narrative. But we also know that the Alfa Bank story was a lie, too, told in service to Sussmann’s clients.
And why on earth would he tell the FBI he wasn’t representing clients if not to make his (fake) “tip” seem more investigation-worthy?
The court ruled it was impossible prior to trial to resolve the “hotly disputed” question of whether Sussmann’s lie about not representing clients “was in fact capable of influencing either the commencement or the later conduct of the FBI’s investigation.” Judge Cooper, an Obama appointee, wrote that “the battle lines thus are drawn...”
On the other hand, that still doesn’t mean the case will get before a jury. Before he can determine the materiality of the lie, the judge said, the prosecution has to present their evidence. Once that has been done, the judge could possibly decide that Sussmann’s lie was “so peripheral or unimportant” to the agency’s function that he’s going to dismiss.
Cleveland explains that the judge could even toss the case after it’s been presented before the jury and they’ve found Sussmann guilty. He could rule on materiality even then, though she finds that highly unlikely.
As I often remind my readers, I am not a lawyer, but Sussmann’s lie about coming forward out of “duty,” not representing any client, is so central to what he was trying to accomplish that dismissing the charge would be a travesty. If it turns out this judge doesn’t have an immediate grasp of the obvious, we can only hope that Durham has the right words to make that argument.
But Cleveland seems assured that he has them for his presentation of the evidence. Durham has said he is prepared to show that the FBI could have been influenced NOT to open a full investigation had they known Sussmann “was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign.” If they’d known that, they might have chosen just to dip a toe rather than jump in, perhaps doing only an assessment or preliminary investigation. They might even have delayed it until after the election, and that would have defeated Sussmann’s purpose in going there in the first place. It had to be started right away --- before the election.
As Law & Crime reports: “Sussmann wanted the inquiry focused ‘only’ on ‘the FBI’s decision to commence an investigation’ based on the information he provided. That, Judge Cooper rationed, was a myopic view of the law --- one ‘based on an overly narrow conception of the applicable standard.’”
Their analysis quotes at length from Judge Cooper’s six-page opinion.
Durham says he has testimony from a number of government witnesses that “understanding the origins” of what Sussmann was bringing them “is relevant to the FBI in multiple ways, including to assess the reliability and motivations of its sources.” How true; it seems to me that any thinking person would understand right away what the motivation was, and that this would have huge bearing on the perceived reliability.
Of course (and Cleveland makes the point), the Crossfire Hurricane team might not have cared one bit where the information came from, considering they latched onto Steele’s “dossier” with both hands even though they knew he was working to elect Hillary. But that says more –- and it’s not flattering –- about those particular FBI agents than it does about materiality of Sussmann’s lie. The question isn’t whether or not a specific agent –- or even the entire Crossfire Hurricane team –- would be influenced, but whether the lie itself, objectively speaking, is CAPABLE of influencing. Durham says he can show that this one is.
So the courtroom testimony by Durham’s witnesses could put the Crossfire Hurricane team in a really bad light, as if we didn’t already know how bad they were, eagerly grasping at anything they could use to damage Trump, even material that was unverified or outright conjecture. They even falsified a document to help get a warrant to spy on his campaign. And in defending Sussmann, his attorneys will likely make the argument that this FBI team didn’t care if he represented Hillary or not. That’s not a good look.
It doesn’t mean Durham will get Sussmann convicted. But according to Cleveland, if the jury does say he’s guilty, Durham will have presented enough evidence to sustain that conviction.
If you’d like a refresher on the case, the New York Post has an updated one.
Finally, in case you didn't see it, Cleveland has another piece from a few days ago in which she shows how Hillary’s chums at the Brookings Institution, now exposed for its "dossier" connections, have been defending Sussmann in print. Cleveland also offers possible scenarios surrounding the surprise appearance of that text message from Sussmann to Baker –- the one re-stating IN WRITING the lie that Sussmann wasn’t representing any clients. “The mysterious case of the appearing text will have to wait for another day,” she writes. But she notes that with the text's emergence, Durham has ample evidence that Sussmann did indeed tell that lie.