Democrat lawyer Michael Sussmann, who allegedly represented his client Democrat candidate Hillary R. Clinton when lying to the FBI about her political opponent, Republican candidate Donald J. Trump during the 2016 Presidential election, wants the charges against him from Special Counsel for the DOJ, John Durham dismissed.
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On Thursday, the judge over that case- held a pre-trial hearing about the request for dismissal, and Sussmann got rebuked, leading some to speculate that the judge may not throw the case out.
“U.S. District Court Judge Christopher Cooper said that after hearing arguments from the defense and from Special Counsel John Durham’s office, he will make a determination whether to dismiss the case against Michael Sussmann, a Hillary Clinton campaign lawyer accused of lying to the FBI,” Fox News reported.
“The bulk of Thursday’s hearing was devoted to a motion by Sussmann’s attorneys to throw out the single-count false-statement charge against their client on various grounds. The effort appeared to face an uphill battle because of the relatively high bar to have a criminal case tossed out on a motion to dismiss…” Hot Air reported.
“I obviously don’t have the benefit of the discovery in this case,” the judge said at the pretrial. “Why aren’t these jury questions?” Cooper asked.
The Clinton campaign has entered into the case.
Durham’s prosecutors revealed they plan to challenge some of the attorney-client privilege claims made by the defense, according to Politico.
“[Assistant US Attorney Andrew] DeFlippis didn’t delve into the details of the dispute during the hearing held by videoconference on Thursday, but he gave one example: He said the Clinton campaign was asserting privilege over the communications of Rodney Joffe, a tech executive who compiled the data Sussmann shared with the FBI. The campaign has asserted the privilege even over messages it was not copied on, DeFelippis said,” Politico reported.
When John Durham’s investigation indicted Sussmann- for lying to General Counsel James Baker at the FBI, the claim against Sussmann was that prior to the 2016 election he’d taken false claims that the presidential campaign for Trump was secretly communicating with Russia’s Alfa Bank.
When Sussmann was asked by the FBI if he was reporting on behalf of a client, Sussmann basically said he was not- that he was just a regular American with concerns.
Durham’s investigation showed that Sussmann’s claims were not true and proved that Sussmann was in fact working for the Clinton campaign and that he even billed the campaign for the meeting with the FBI.
In his defense, Sussmann’s attorneys filed a motion to dismiss the Durham case arguing that even if their client lied about who he was working for when he brought information about Trump and Alfa Bank to the FBI, that lie was an ancillary matter. Ancillary Matters deal with issues pertaining to custody care and control and access.
Fox News reported that Sussmann has filed a motion to have the case against him dismissed claiming “extraordinary prosecutorial overreach.” Media reports claimed that Sussmann wasn’t claiming that he didn’t lie to the FBI, he was claiming that even if he did the lie, he shouldn’t be prosecuted for lying.
Law and Crime reported on Sussmann’s claims:
“It has long been a crime to make a false statement to the government. But the law criminalizes only false statements that are material—false statements that matter because they can actually affect a specific decision of the government,” the lawyers wrote, adding that, by contrast, false statements “about ancillary matters” are “immaterial and cannot give rise to criminal liability.”
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“Accordingly, where individuals have been prosecuted for providing tips to government investigators, they have historically been charged with making a false statement 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,” the lawyers wrote. “Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here.”…
“He met with the FBI, in other words, to provide a tip,” Sussmann’s lawyers wrote. “There is no allegation in the indictment that the tip he provided was false. And there is no allegation that he believed the tip he provided was false. 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.”
Both sides have already submitted written briefs, and Cooper said he would review those and the arguments made during Thursday’s hearing before issuing a written ruling, but he did not say when that ruling will come.