Judge denies motion to dismiss case in Durham probe; trial for former Clinton attorney coming up

Former Clinton campaign lawyer Michael Sussmann has had his motion to dismiss Special Counsel John Durham’s case against him denied on Wednesday, clearing the path for the much-anticipated trial to finally get underway as planned next month.

Sussmann, who has pleaded not guilty to a charge of making a false statement to a federal agent, filed the motion to dismiss in February.

The charges, brought last year by a grand jury impaneled by Durham, were detailed by U.S. District Judge Christopher Cooper in a court filing on Wednesday, Fox News reports.

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Durham’s indictment stems from a conversation Sussmann had with then-FBI General Counsel James Baker in the months leading up to the 2016 presidential election, during which Sussmann allegedly claimed he was not working “for any client” when he presented Baker with “purported data and ‘white papers’ that allegedly demonstrated a covert communications channel” between the Trump Organization and Kremlin-tied Alfa Bank.

“Specifically, Sussmann allegedly told Baker that he was not attending the meeting on behalf of any client when, in fact, he had assembled and was conveying the information on behalf of two specific clients: (1) a technology-industry executive named Rodney Joffe and (2) the Hillary Clinton presidential campaign,” wrote Judge Cooper.

“The FBI opened an investigation based on the information Sussmann provided, but ultimately determined that there was insufficient evidence to support the existence of a communication channel between the Trump campaign and the Russian bank,” Cooper continued. “Sussman has pled not guilty to the charge and denies lying to the FBI.”

According to Cooper, Sussmann’s “sole argument for dismissal” of the case against him is that “even taking the allegations in the Indictment as true, his purported misrepresentation to Baker was immaterial as a matter of law and therefore cannot support a conviction” under U.S.C. 1001, which covers lying to a federal agent.

“The court will deny the motion,” Judge Cooper ruled.

The judge explained that the standard for materiality under the U.S. code is “whether the statement has ‘a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the [government] agency to which it was addressed.”

According to Cooper, Sussmann argued that the statements he allegedly made to Baker claiming he was not working on behalf of a client “could not have possibly influenced what was, in his view, the only ‘discrete decision’ before the Bureau at the time: whether to initiate an investigation into the Trump campaign’s asserted communications with the Russian bank.”

But, said Cooper, Sussmann “largely ignores the second part of the test: whether the statement could influence ‘any other function’ of the agency.”

“Sussman seeks to cabin this holding to statements made during the course of an ongoing investigation, but the Court sees no basis for that bright-line divide,” Cooper stated in his filing. “As the Special Counsel argues, it is at least possible that statements made to law enforcement prior to an investigation could materially influence the later trajectory of the investigation.”

“Sussman offers no legal authority to the contrary,” Judge Cooper noted, adding that whether Sussmann’s alleged statement “was in fact capable of influencing either the commencement or the alter conduct of the FBI’s investigation is a very different question, and one that the parties hotly dispute.”

“The battle lines thus are drawn, but the Court cannot resolve this standoff prior to trial,” Cooper said.

 

As reported by American Wire News earlier this month, Durham has previously filed a request that would specifically allow him to introduce evidence that Sussmann met with the notorious Christopher Steele, author of the Steele dossier famously used by the Clinton campaign to smear candidate and then President Donald Trump. Durham’s goal is reportedly to prove that Sussmann’s actions were part of a “joint venture or conspiracy” involving Hillary Clinton’s presidential campaign.

“These parties acted as ‘joint venturer[s]’ and therefore should be ‘considered as co-conspirator[s],” Durham wrote at the time.

The focus of the filing was the purpose of Sussmann’s meeting with Steele.

“Although the defendant [Sussmann] testified before Congress that the purpose of the meeting was to ‘vet’ [Steele] for the Clinton Campaign given the defendant’s knowledge of national security matters, [Steele] has testified” otherwise “under oath,” the filing read.

He testified, the filing continued, “that, during the meeting, the defendant told him … about the [Alpha Bank] allegations. [Steele] further testified that after the meeting, personnel from [Fusion GPS] tasked [Steele] to research and produce intelligence reports about [Alpha Bank], which he did.”

“According to U.S. government records and public information, [Steele] also provided the substance of the [Alpha Bank] allegations to personnel from the U.S. State Department, and [Fusion GPS] provided such information to an official at the U.S. Department of Justice.”

The decision to include this information in his finding suggests that Durham “plans to describe at the trial how the Clinton campaign tried to dig up dirt about then-candidate Donald Trump and his ties to Russia,” CNN reported at the time.

The trial is set to begin on May 16.

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