Thursday morning a federal judge heard arguments on former Clinton Campaign attorney Michael Sussmann’s motion to dismiss the Special Counsel’s criminal case against him. Then, after taking the motion under advisement, presiding Judge Christopher Cooper considered a variety of housekeeping matters. Here’s what we learned from Thursday’s hour-long proceedings.
1. Sussmann Is Likely to Lose His Motion and Face a Jury
Thursday’s hearing began shortly after 10:00, with Judge Cooper, a Barack Obama appointee, first considering Sussmann’s motion to dismiss the criminal indictment returned in September of last year. That indictment charged the former Clinton Campaign attorney with making false statements to the FBI General Counsel James Baker on September 19, 2016, when Sussmann provide Baker with “white papers” and data ostensibly showing a secret communications channel existed between the Trump organization and the Russia-connected Alfa Bank.
According to the one-count indictment, when Sussmann met with Baker, Sussmann falsely claimed he was not acting on behalf of a client. In fact, though, the indictment charged that at the time Sussmann was working both for the Clinton Campaign and an unnamed “U.S. technology industry executive,” since identified as Rodney Joffe. That lie, according to the indictment, constituted a false statement violative of Section 1001 of the federal criminal code
Thursday’s hearing opened with Sussmann’s attorney, Michael Bosworth from the law firm of Latham & Watkins, reiterating to the court many of the arguments Sussmann’s legal team had presented to the court in the Motion to Dismiss it filed in February. In that motion, Sussmann’s attorneys argue that even if Sussmann had lied to Baker — a fact Sussmann disputes — the lie was not “material.” And since Section 1001 criminalizes only “a materially false, fictitious, or fraudulent statement or representation,” Sussmann’s legal team argued that he committed no crime.
Over the course of the hour-long hearing, Sussmann’s attorney argued that his client’s alleged lie was immaterial from a variety of angles. With every argument for dismissal presented, however, Judge Cooper challenged Bosworth, and at one point, Sussmann’s attorney even acknowledge that he would move on as the court seemed to see his argument “not that persuasive.”
While Judge Cooper likewise peppered Special Counsel Durham’s lead prosecutor, Andrew DeFilippis, with questions on the issue of materiality, the court’s queries strongly suggested Sussmann’s attempt to have the criminal charge tossed will fail. And from a legal perspective, as I explained following the briefing, it should fail.
The court, however, did not rule from the bench but instead took the motion under advisement, telling the parties who were participating remotely that he would issue a decision “sooner rather than later,” which likely means an order will issue by early next week.
2. The Crossfire Hurricane Team Was Inept
Although Thursday’s substantive hearing focused solely on Sussmann’s Motion to Dismiss, the arguments presented revealed several interesting tidbits. For instance, both parties agreed that Baker’s testimony would be that he did not ask Sussmann if he was representing a client; rather, Sussmann volunteered to the FBI General Counsel that he was not there on behalf of any client.
The more intriguing revelation, though, comes from what else the FBI did not ask Sussmann. According to Bosworth, at no point did the FBI ask Sussmann where the data and white papers came from. Bosworth stressed this point to argue that the Special Counsel’s claim that the lie was material was “nonsensical.”
In arguing the lie was material, the Special Counsel’s office had noted that it intended to call a government witness who would testify that the “first thing you ask is where was the data from.” In his rebuttal argument, Bosworth stressed that the government’s claim that the FBI would have asked where the data came had Sussmann not lied is “nonsensical” because “at no point” did anyone involved in the investigation ask Sussmann where he got the data from that he presented to Baker.
Initially, this argument cuts against Sussmann’s position because, as the government pointed out, Sussmann’s lie “lulled” the FBI into believing the data came from a legitimate disinterested source when it did not. But the bigger takeaway from this exchange is that the Crossfire Hurricane team was so inept, biased, or blind that it didn’t ask that very basic question: Where did this data showing a Trump-Russia secret communication channel come from?
That the Crossfire Hurricane team failed in this basic respect, however, does not help Sussmann, because in determining if a lie is material, the focus is on a hypothetical “objective” government official and not on how any one individual would have acted had they known the truth.
More significantly, though, this exchange shows that the Special Counsel’s team will present government witnesses who will establish that, yes, a reasonable, objective FBI agent’s first step would be to determine the data source — proving Comey’s team was anything but reasonable or objective.
3. Jury Instructions Will Be Key
The oral argument also revealed just how significant jury instructions will be to whether Sussmann is convicted.
Throughout the argument, Bosworth stressed the defense’s position that for a lie to be “material” it must have a sufficient nexus to the subject of the investigation, rather than be ancillary to the investigation. Further, the purported false statement must be something “that is more than trivial” and “more than negligible.”
Bosworth initially argued that the alleged lie in this case could not pass these standards, as a matter of law. “As a matter of law” means that it is a question for the judge to decide, as opposed to a jury, and Bosworth argued that in this case, the court should dismiss the case.
However, Sussmann’s attorney then noted that if it is a jury question, the jury must be “properly instructed” that the lie must be something “more than trivial” — “it must matter.” And it is important that the jury be instructed the lie cannot be about an “ancillary” or “non-determinative fact,” Bosworth added, before noting that “we will fight this at the jury instruction stage.”
This preview provides an interesting insight into the future of this case, with the parties likely jockeying over the precise explanation of “materiality” the jury will receive. If Sussmann succeeds in having the jury instructed that the lie must be “more than trivial” and that it cannot be “ancillary” to the criminal case, Sussmann’s chances of acquittal will increase substantially because a talented trial attorney can convey the impression that something material is trivial. But the jury instruction battle is still several motions away.
4. A Flurry of Motions In the Works
While the jury instruction fight will not happen for some time, there are several other disputes likely to monopolize the court’s time in the interim, as revealed after the court moved on to the “status conference” portion of the hearing.
After announcing his intent to take the case under advisement, Judge Cooper noted (using the applicable jargon) he had a few issues of discovery related to classified material to resolve and then asked if there were any issues. At this point, Sussmann’s attorney noted it would be filing various motions, including one related to what is called rule 404(b) evidence.
Rule 404(b) evidence is “character evidence” or evidence showing the defendant engaged in other crimes or wrongful acts. The government notified Sussmann’s legal team of its intent to admit at least two separate pieces of Rule 404(b) evidence and Bosworth noted that the defense would be filing a motion to exclude that evidence. There was no discussion, however, as to the content of that evidence.
Sussmann next raised a concern over the government’s disclosure of an expert witness it intended to call in support of its case against Sussmann. Bosworth argued that the government’s notice of its intent to present expert testimony was untimely because with a mere six weeks until trial, it does not provide Sussmann time to find an expert to counter the prosecution’s expert.
A discussion then followed on the intended scope of the expert testimony, with DeFilippis explaining that it intended merely to provide background or a “tutorial” about DNS data, but that if Sussmann attempted to argue that the Alfa Bank data was accurate, that the government would use its expert to counter that point. Sussmann’s legal team objected to the use of the expert to challenge the Alfa Bank data and noted that it would be filing a motion soon if they could not reach an agreement.
Finally, Bosworth raised with the court a complaint over the Special Counsel’s intent to try to pierce attorney-client privilege being asserted by Hillary for America, the DNC, and Fusion and to present evidence obtained from those third parties at trial against Sussmann. A challenge at this late date, Sussmann’s lawyer argued “would be wildly untimely” and now, with only six weeks before trial, implicates Sussmann’s due process rights. “In our view,” Bosworth continued,” it is “an ambush” and could potentially change the entire parameter of the case.
DeFilippis noted in response that the Special Counsel’s office has been working with the “privilege holders,” meaning the clients, naming them as Joffe, the Clinton Campaign, and “another political organization,” and has been busy hashing out the issue of privilege. But, a motion will need to be presented, DeFilippis added, providing for purposes of illustration that the Clinton Campaign is claiming privilege over communications with Joffe that they are not even copied on. Sussmann’s legal team again objected to the lateness of the hour to resolve these questions—something his attorneys will surely argue when the motion is forthcoming.
The judge then directed the parties to discuss a schedule for briefing these three motions and adjourned the hearing.
5. The Case Will Not Be Over Anytime Soon
After this morning’s hearing, one final point is clear: This case will not be over soon unless Sussmann is acquitted.
Soon after he was indicted, Sussmann insisted on a speedy trial, and one is set to start with jury selection on May 16, 2022. If the jury acquits the former Clinton campaign attorney, the case will be over then.
But if a jury convicts Sussmann, he has already previewed several arguments for an appeal, including his claim that his purported lie is immaterial as a matter of law. If he loses, he will also likely challenge any refusal by the court to provide his desired jury instructions. Then he has the “due process” arguments he floated Thursday based on the lateness of the hour to pierce the attorney-client privilege of third parties, such as Joffe and the Clinton Campaign.
Given Bosworth’s near-flawless execution during Thursday’s argument, even when holding a losing argument, it seems clear that even if Sussmann is guilty, convicting him is not going to be an easy task, and obtaining a conviction that withstands appeal will be even more difficult.