The federal judge presiding over the criminal case against Michael Sussmann denied the former Clinton Campaign attorney’s Motion to Dismiss the Section 1001 false statement charge brought against him by the Special Counsel on Wednesday.
Declaring “the battle lines” drawn, in a short six-page opinion, the court rejected Sussmann’s attempt to have the criminal case against him tossed, saying it was too early to determine if Sussmann’s alleged lie to the former FBI General Counsel was “material.”
The Special Counsel’s office had charged Sussmann in a one-count indictment last September of violating Section 1001 by lying to the then-FBI General Counsel, James Baker, when he provided Baker information purporting to establish a secret communications channel between the Trump campaign and the Russian-based Alfa Bank. According to the indictment, Sussmann claimed he was passing the information on as a concerned citizen, and not on behalf of any client, when in fact, Sussmann represented both the Clinton Campaign and tech executive Rodney Joffe.
Two weeks ago, presiding Judge Christopher Cooper, a Barack Obama appointee, heard oral argument on Sussmann’s Motion to Dismiss. In arguing for dismissal, Sussmann’s legal team stressed that Section 1001 only criminalizes “materially” false statements. Then, claiming their client’s alleged lie to Baker was “immaterial,” Sussmann’s lawyers argued that, as a matter of law, he could not have violated Section 1001.
Wednesday’s opinion denying the Motion to Dismiss, shredded several of Sussmann’s arguments, most significantly his assertion “that the materiality of his statement must be assessed only in relation to the FBI’s decision to commence an investigation.” Sussmann had attempted to avoid criminal liability 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 court rejected that argument in Wednesday’s opinion, finding it “an overly narrow conception of the applicable statute.” Instead, the court held that controlling circuit precedent establishes that a lie may be material if it “influence[s] the later trajectory of the investigation.”
The court then considered the question of whether Sussmann’s alleged lie to Baker — that he was not representing any client in bringing the Alfa Bank evidence to the FBI — “was in fact capable of influencing either the commencement or the later conduct of the FBI’s investigation.” In addressing this issue, the court summarized Sussmann and the Special Counsel’s respective positions, and, calling the question “hotly disputed,” concluded it could not resolve the dispute prior to trial.
While the trial court denied Sussmann’s Motion to Dismiss, Judge Cooper nonetheless left open the possibility that Durham’s Section 1001 case may never reach a jury, writing:
“So, while Sussmann is correct that certain statements might be so peripheral or unimportant to a relevant agency decision or function to be immaterial under § 1001 as a matter of law, the Court is unable to make that determination as to this alleged statement before hearing the government’s evidence. Any such decision must therefore wait until trial.”
In other words, the court is telling Sussmann that it will reconsider the materiality question after the prosecution has presents it “case-in-chief,” or the government’s evidence in support of its Section 1001 charge. If, at that point, the court concludes the evidence is “so peripheral or unimportant” to the agency’s function, the charge could still be dismissed without reaching a jury.
The court could likewise toss the case after Sussmann presents his defense to the charge and the government counters with rebuttal witnesses, or even after the case is submitted to the jury and the jury returns a guilty verdict. In any of these scenarios, the court could still rule, as a matter of law, that the evidence of materiality is just not enough to violate Section 1001.
These possibilities are unlikely, though, because the parties’ respective arguments make clear that sufficient evidence exists to support a jury verdict.
First, Durham’s team has made clear that it is prepared to present evidence at trial that will prove the FBI, had it known that 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,” could have, instead of opening a “full investigation,” conducted an “assessment,” opened a “preliminary investigation,” or delayed an investigation until after the election.
According to the Special Counsel’s briefing, it will also present testimony from “multiple government witnesses” confirming “that understanding the origins of data and information is relevant to the FBI in multiple ways, including to assess the reliability and motivations of the sources.” Those same witnesses will likely also testify that had they known Sussmann was presenting evidence compiled on behalf of the Clinton Campaign and Joffe, they would have more fully investigated the genesis of the white papers and how the data was compiled.
Of course, knowing that Sussmann was acting on behalf of the Clinton Campaign and Joffe is unlikely to have changed how members of the Crossfire Hurricane team approached the Alfa Bank material; after all, knowing the Clinton Campaign funded Christophe Steele’s dossier, made no difference to the Crossfire Hurricane agents.
Significantly, though, the law does not care how any one specific agent would have reacted but for a lie. Rather, on the issue of “materiality,” the question is whether the lie “is capable of influencing a decision,” and the test is an objective one.
This reality will make the upcoming criminal trial quite the spectacle, with the Special Counsel’s office calling as witnesses federal agents who were not involved in the Crossfire Hurricane investigation. They will likely testify concerning proper protocols and procedures and in doing so, expose the many failings of the team investigating first candidate, and then, President Trump. In contrast, when Baker and other members of the Crossfire Hurricane team testify concerning the Alfa Bank aspect of the investigation, Sussmann’s attorneys will likely elicit testimony showing they didn’t care who Sussmann represented.
But, because the law of materiality adopts an “objective” viewpoint, it does not matter what the individual agents did, did not do, or would have (or would not have) done. Thus, even if all of the agents involved in Crossfire Hurricane testify that Sussmann’s alleged lie had no impact on their investigation, as a matter of law, it can still be material.
Here, then, the agents called by the Special Counsel’s office to testify on why the lie mattered, will not only help the Special Counsel prove the criminal case against Sussmann, but they will also expose the massive failings of the Crossfire Hurricane team.
That does not mean that the jury will convict Sussmann: It just means that the Special Counsel has enough evidence to sustain a jury verdict.