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5 New Special Counsel Arguments Against A Russia Hoaxer’s Attempt To Escape

President Trump and Vice President Pence Speak with Military Family Members
Image CreditOfficial White House Photo by Shealah Craighead

Special Counsel John Durham demolished a key Russia hoax figure’s attempt to get criminal charges against him dropped.

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Special Counsel John Durham demolished a key Russia hoax figure’s attempt to get criminal charges against him dropped.

Approximately two weeks ago, Michael Sussmann’s legal team filed a motion to dismiss the criminal charge the special counsel’s office brought against the former Hillary Clinton campaign attorney. On Friday, the special counsel filed a response that demolished Sussmann’s legal arguments, highlighted several significant facts related to the pending charge, and revealed the ridiculousness of the defense’s attempt to hide behind the First Amendment.

Here are five key takeaways from Durham’s response.

1. Sussmann’s Alleged Lie Was Material Even Under the Defense’s Screwy Standard

In September 2021, the special counsel’s office charged Sussmann in a one-count indictment with lying to former FBI General Counsel James Baker in violation of 18 U.S.C. § 1001(a)(2). As I explained last month, “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.”

Late last month, Sussman’s legal team filed a motion to dismiss the criminal charge, arguing that even if he had lied, his falsehood did not constitute a crime because Section 1001(a)(2) criminalizes only “a materially false, fictitious, or fraudulent statement or representation.” Sussmann’s alleged lie, according to defense attorneys, was not material. The government’s response decimated that argument, laying out first the strawmen erected by Sussmann’s lawyers.

“Distilled to its core,” the special counsel began, the defendant’s argument rests on the premise that the only question is whether Sussmann’s alleged lie was material to the “discrete decision” of whether the FBI should launch an investigation into the Alfa Bank data and white papers. But materiality is not so narrow, Durham’s response stressed. Rather, “a false statement is material if it has the capability to influence a ‘discrete decision’ or ‘any other function of the agency.’”

After stating the correct standard, the special counsel’s office detailed how Sussmann’s lie could have affected the function of the FBI—stressing also that the materiality standard considered the “potential,” as opposed to actual, effects of the falsehood. For instance, Durham’s team explained, had the FBI known Sussmann presented the Alfa Bank theory to Baker as a representative of the Clinton campaign and Joffe, “the FBI likely would have asked certain questions and conducted interviews during the investigation that would bear directly upon the information’s reliability and/or Tech Executive-1’s motivation in providing the information.”

Durham added that, even using the incorrect narrow standard Sussmann posited, his alleged misrepresentation was material because it could have influenced the FBI’s decision-making. Here, Durham stressed the FBI’s decision was not “binary in nature, i.e., whether or not to initiate an investigation.” Rather, given how the FBI initiates and conducts an investigation, had Sussmann truthfully informed Baker of his clients’ identities—or even that he was working on behalf of a client—the “FBI could have taken any number of steps prior to opening what it terms a ‘full investigation,’ including, but not limited to, conducting an ‘assessment,’ [or] opening a ‘preliminary investigation.’”

Moreover, given the “stringent guidelines” of the DOJ and FBI concerning matters that could potentially affect elections, coupled with “the temporal proximity to the 2016 U.S. presidential election,” the FBI, had it known that Sussmann was providing the information on behalf of the Clinton campaign, may have opted to delay or decline to initiate an investigation.

The special counsel’s office further stressed that the question of materiality typically presents a jury question, or at a minimum it is premature to decide the issue at this point. In this respect, Durham’s team stressed that the case law Sussmann presented in support of his claim involved cases where the government had already presented its evidence to the jury or involved a challenge to jury verdict on materiality.

In sum, in the government’s response brief, the special counsel refuted six ways to Sunday Sussmann’s claim that his alleged lie was not material, with this pithy summary striking to the heart of the matter: “The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign.”

While Sussmann’s legal team will still have an opportunity to file a reply brief before the court rules, denial of Sussmann’s motion to dismiss is inevitable.

2. Sussmann Was Not the Clinton Campaign’s Political Lawyer

In addition to refuting Sussmann’s legal argument that his alleged lie to Baker was not “material,” the special counsel’s office countered several factual claims presented by Sussmann’s lawyers in his motion to dismiss. For instance, in seeking dismissal of the criminal charge, Sussmann’s legal team stressed that “the Indictment makes clear that the FBI and Mr. Baker himself were well aware that Mr. Sussmann was representing the Democratic National Committee at a time when Hillary Clinton, the Democratic nominee for president, was the Democratic National Committee.”

Sussmann’s friends in the media have also pushed this narrative since news of the criminal charge against Sussmann first broke. The Washington Post wrote on the day the indictment dropped that legal experts cast doubt on the case, framing the lie as trivial because “the indictment itself says the FBI already knew Sussmann was a lawyer for the Democratic National Committee.”

Friday’s response by the special counsel’s office destroyed this talking point by stressing that while “the FBI General Counsel was aware that the defendant represented the DNC on cybersecurity matters arising from the Russian government’s hack of its emails,” evidence at trial will establish that Baker did not know “that he provided political advice or was participating in the Clinton Campaign’s opposition research efforts.”

“Indeed, the defendant held himself out to the public as an experienced national security and cybersecurity lawyer, not an election lawyer or political consultant,” Durham’s team continued. Thus, according to the special counsel, “when the defendant disclaimed any client relationships at his meeting with the FBI General Counsel, this served to lull the General Counsel into the mistaken, yet highly material belief that the defendant lacked political motivations for his work.”

While case law makes clear that a lie may be material even if the law enforcement officer knows a person is lying at the time, the special counsel’s response provides a strong counter to the press’ propaganda-tinged reporting that Baker clearly knew Sussmann was a Clinton lawyer.

3. The FBI’s Relationship With Joffe Proves His Use of Sussmann Was Suspect

The special counsel’s Friday response also countered a second factual argument presented in Sussmann’s Motion to Dismiss concerning Sussmann’s client Joffe. In framing his alleged lie to the FBI as not material, Sussmann argued the indictment includes no explanation as to why the knowledge that Sussmann was representing Joffe “would have been material to the FBI’s decision whether or not to initiate an investigation when Tech Executive-1—far from being a stranger to the FBI—was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI.”

Rather than advance Sussmann’s argument, however, Joffe’s “longstanding relationship of trust” with the FBI shows the significance of Sussmann’s statement to Baker that he did not represent anyone in the meeting. The special counsel’s team hammered that point in its response brief: “As the defendant’s motion reveals, Tech Executive-1 had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign.”

“Given Tech Executive-1’s history of assistance to law enforcement, it would be material for the FBI to learn of the defendant’s lawyer-client relationship with Tech Executive-1 so that they could evaluate Tech Executive-1’s motivations,” Durham continued.

The significance of this point has escaped the Durham deniers who cast Joffe and his tech friends as merely concerned citizens sharing intel with the government: That Joffe used a private lawyer to peddle the Alfa Bank theory to the FBI, rather than reach out himself, is suspect. The ramifications also don’t end there, because Joffe also used Sussmann to push the Alfa Bank narrative, as well as claims to the CIA that Trump or his associates were using rare Russian cell phones “in the vicinity of the White House.”

But there’s more: Sussmann also shared information from Joffe with the inspector general of the Department of Justice, but without apparently telling the DOJ Joffe’s identity. Instead, Sussman in early 2017, told the Office of Inspector General that his unnamed client “had observed that a specific OIG employee’s computer was ‘seen publicly’ in ‘Internet traffic’ and was connecting to a Virtual Private Network in a foreign country.”

If Joffe had a “long-standing relationship of trust” with the FBI, why didn’t Joffe take this information to the FBI? Or if Joffe wanted Sussmann to provide the information to the OIG, why wouldn’t Sussmann disclose that Joffe had been the client who made the observation so the DOJ knew the tip came from a reliable source?

It now also appears that, after the election, Sussmann may have shared Joffe’s Alfa Bank data with two Democrat senators on the Senate Armed Services Committee, prompting further investigation into this second Russia collusion hoax. So, far from supporting Sussmann’s argument that his alleged lie was immaterial, Joffe’s status as a long-standing respected source for the FBI suggests hiding the political motives proved essential to the plot.

4, Yes, Spying on The Executive Office of the President Concerned Trump

Last week’s response by the special counsel’s office to Sussmann’s Motion to Dismiss also countered the spin the corrupt media launched to downplay news that Joffe had tracked DNS traffic of Trump Tower, Trump’s New York City apartment, a health-care provider connected to a Trump supporter, and the Executive Office of the President, and then took that supposed intel to the CIA.

When that news broke, the usual suspects pounced on the fact that the DNS lookups at the Executive Office of the President occurred before Trump took over as commander-in-chief. However, as Friday’s response made clear, the DNS tracking of the Executive Office of the President was all about Trump.

According to the special counsel’s brief, in Sussmann’s meeting with the CIA, “the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (‘IP’) addresses affiliated with a Russian mobile phone provider.” The brief continued: “The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using a type of Russian-made wireless phone in the vicinity of the White House and other locations.”

In short, that Trump was not president when the DNS spying took place at the Executive Office of the President means nothing: Trump was the target.

5. Sussmann Should Have Known Better—So Stop Hiding Behind the First Amendment

The special counsel’s office concluded its response brief by refuting Sussmann’s argument that the government’s theory of materiality raises serious constitutional concerns and risks “chilling valuable First Amendment speech.” Here, Durham’s team began by ridiculing the hypothetical Sussmann’s lawyers posited as an example of the type of speech potentially chilled—that of a jilted lover afraid to report her ex’s “extensive gun-smuggling operation” to the feds.

“This comparison is absurd,” the special counsel wrote, stressing that “far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant—a sophisticated and well-connected lawyer—chose to bring politically-charged allegations to the FBI’s chief legal officer at the height of an election season.”

“He then chose to lie about the clients who were behind those allegations,” Durham’s team continued, emphasizing that “using such rare access to the halls of power for the purposes of political deceit is hardly the type of speech that the Founders intended to protect.”

The special counsel punched down more by noting that Sussmann, “as a former government attorney and prosecutor . . . was well aware that the law required him to be honest and forthright when communicating with the FBI.” “That lawyers should be honest in their dealings with federal law enforcement agencies is not an imposition that the Constitution prohibits. It is an expectation that undergirds the integrity of our legal system,” Durham concluded.

Of course, the converse is also true: Honest and forthright communications by the FBI and the DOJ “undergirds the integrity of our legal system.” That is why the Spygate scandal is so devastating to our country.