On Feb. 17, attorneys for Michael Sussmann, the former attorney for the Hillary Clinton campaign, filed a motion to dismiss the criminal case pending against him in the D.C. district court. Special Counsel John Durham charged Sussmann in September 2021, in a one-count indictment, with lying to former FBI General Counsel James Baker in violation of 18 U.S.C. § 1001(a)(2).
Specifically, the indictment charged that when Sussmann met with Baker on September 19, 2016, and provided him “white papers” and data files purporting to show the Trump organization had established a secret communications channel with the Russia-connected Alfa Bank, Sussmann falsely claimed he was not acting on behalf of a client. In truth, the indictment alleged, Sussmann was working both for the Clinton campaign and an unnamed “U.S. technology industry executive,” since identified as Rodney Joffe.
In seeking dismissal of the Section 1001 false statement charge, Sussmann’s attorneys argue that even if the allegations in the indictment are the truth—something they dispute—the facts alleged do not constitute a crime because Sussmann’s alleged lie to Baker was not “material.” And, as Sussmann’s lawyers stress, Section 1001 criminalizes only “a materially false, fictitious, or fraudulent statement or representation.”
Sussmann’s lie to Baker, that he was not representing any clients in sharing the white papers and data about the purported Alfa Bank-Trump connection with the FBI, was immaterial, Sussmann argued in his motion, because “the only decision that the agency could try to make is the decision whether to initiate an investigation in the first place.” “After all, absent an existing investigation, there is no other formal exercise of governmental power that a false statement could conceivably influence,” the argument continued.
Whether the government believed Sussmann was acting on his own, or as a representative of Joffe and the Clinton campaign, is immaterial, Sussmann argued, because the government did not charge him with providing a false tip to the FBI. Under these circumstances, his motive for passing on the tip was entirely irrelevant to the government’s decision to investigate the Alfa Bank allegations, Sussmann claimed.
In support of his position, Sussmann cited a variety of case law involving situations in which the courts held alleged lies to government officials were immaterial, arguing those situations were analogous to his own. Sussmann also argued that reading the “materiality” element of Section 1001 too broadly raises serious constitutional and other concerns.
For instance, “a person could be criminally prosecuted for providing truthful information to a government agency (e.g., a terrorist threat) simply because she lied about her motivation for reporting that information (e.g., seeking revenge after a failed relationship with the terrorist),” Sussmann argued. Such an understanding of “materiality,” would “chill valuable First Amendment speech, and intrude on legal advocacy and lawyer-client relationships,” Sussmann suggested.
While Sussmann’s arguments sound persuasive in isolation, they falter when considered against controlling circuit precedent and the totality of the facts alleged in the indictment.
As the D.C. Circuit Court of Appeals has explained, a false statement is material under Section 1001 when it has “a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it is addressed.” United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010). Further, case law holds that what matters is the false statement’s potential effects on the general functioning of the agency, which includes not merely the decision to open an investigation—the discrete decision on which Sussmann focuses—but also the FBI’s general approach to investigating tips.
It is this latter, broader aspect of materiality that the special counsel relied upon in charging Sussmann with violating Section 1001, as demonstrated by the indictment’s allegations that Sussmann’s false statement “that he was not acting on behalf of any client” could have prevented the FBI from uncovering that Joffe “had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump.”
Here, it is important to remember that the law on materiality is clear that the falsehood need not actually influence the agency’s decision-making process, but merely needs to be “capable” of doing so. Thus, while Sussmann attempts to overcome the materiality argument in his brief by focusing on the many “might haves” or “could haves” alleged in the indictment, the special counsel’s focus on such possibilities is entirely appropriate.
Durham’s team will likely make these and many more arguments when it responds to Sussmann’s motion to dismiss. It also wouldn’t be surprising if before responding the special counsel’s office obtains (or unseals) additional indictments that provide further support for the argument that Sussmann’s lie was material.
We should know more within the next couple of weeks.