- A former Clinton campaign lawyer asked a judge to dismiss
John Durham 's case against him. - Durham's office indicted
Michael Sussmann last year on a charge of lying to the FBI.
A former lawyer for the Hillary Clinton campaign asked a judge on Thursday to dismiss the special counsel John Durham's pending case against him, in which he's accused of lying to the FBI.
"This is a case of extraordinary prosecutorial overreach," lawyers for Michael Sussmann, who previously worked for the law firm Perkins Coie, said in a new court filing. It went on to say that while it has "long been a crime" to make false statements to the government, the law "criminalizes only false statements that are material," meaning statements that directly affect a specific government decision.
"By contrast, false statements about ancillary matters ... are immaterial and cannot give rise to criminal liability," the filing said.
Sussmann was charged last year with lying to the FBI during a conversation with then FBI general counsel James Baker in 2016. Durham's indictment said that Sussmann "lied about the capacity in which he was providing" allegations to the FBI about what he claimed was a "secret communications channel" between the Trump Organization and Russia's Alfa Bank.
The indictment said Sussmann met with Baker in September 2016, as the FBI was investigating the Trump campaign's links to Russia, and turned over documents and data that he said he believed contained evidence of a covert communications channel between the Trump Organization and Alfa Bank. The bureau has not uncovered evidence of such a connection.
The indictment said Sussmann lied to the FBI when he told Baker he wasn't working on behalf of any client. In fact, the indictment said, Sussmann was acting on behalf of the Clinton campaign, an unnamed tech executive, and an internet company.
Sussmann's motion to dismiss on Thursday said that in the past, those who have been charged in connection to providing tips to the government have been prosecuted for lying to the FBI "only where the tip itself was alleged to be false, because that is the only statement that could affect the specific decision to commence an investigation."
When Sussmann met with Baker in September 2016, the filing said, he went "to provide a tip."
"There is no allegation in the Indictment that the tip he provided was false. And there is no allegation that he believed that the tip he provided was false," it continued.
"Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel's own Indictment fails to allege had any effect on the FBI's decision to open an investigation," the filing said.
Durham's office said last year that Sussmann's failure to disclose the capacity in which he was bringing the Trump-Alfa Bank allegation to the FBI "misled FBI personnel and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and analysis, including the identities and motivations of Sussmann's clients."
According to court documents, Sussmann worked with the tech executive, who is not named in the filings but whom The New York Times reported was Neustar employee Rodney Joffe, to put together the materials that Sussmann later provided to the FBI.
Sussmann also flagged to the CIA in February 2017 that internet data he had obtained from Joffe suggested someone using a Russian-made smartphone was connecting to White House and Trump Tower networks.
Joffe has not been charged with a crime. But Durham's office said in court documents that Joffe "exploited" his access to DNS traffic that his company had lawful access to as part of a government contract to monitor for cyberattacks and malware, and which was provided to researchers at Georgia Tech. Investigators said Joffe tasked the researchers with going through the data to establish an "inference" and "narrative" tying then candidate Trump to Russia.
Durham's filing said some of the internet data that was mined was connected to two Trump buildings in New York City, the executive office of the president (EOP), and an unrelated Michigan hospital company that had also interacted with the Trump server.
Former President Donald Trump and many others in the right-wing media sphere erupted over the allegations, saying they confirmed Trump's longtime claim that the Clinton campaign "illegally spied" on him and his White House.
While the information Durham laid out raises questions about the ethics of Joffe using the data his company had legal access to for purposes that went beyond the scope of what the firm was hired to do, Durham has not presented any evidence saying that someone illegally accessed the data. He also hasn't accused anyone of breaking the law by hacking or spying.