Government

Judge Denies DNC Lawyer's Motion To Dismiss Durham Indictment. Can Gitmo Be Far Behind?

Yes, yes it can.

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deniedYesterday, US District Judge Christopher R. Cooper denied attorney Michael Sussmann’s motion to dismiss the false statement charge against him brought by Special Counsel John Durham.

Sussmann, formerly of Perkins Coie, represented the Democratic National Committee, the Clinton campaign, and cybersecurity expert Rodney Joffe. After Russian hackers infiltrated DNC servers, Joffe’s company Neustar was part of a group tasked with monitoring internet traffic to see if other sensitive sites were under attack, which is how they came to discover weird pings between a server in Trump Tower and a Russian bank. He did not, as Trump and his acolytes have suggested, “hack” the White House.

The “Alfa Bank” story appeared in October of 2016 in Slate, but a month before that, Sussmann approached FBI general counsel James Baker with data that could fairly be described as “massaged” to suggest something nefarious about the traffic between the Trump server and a Russian bank — not that what he said wasn’t true, but perhaps it was spun. Whatever the case, five minutes before the statute of limitations expired, John Durham, who has spent three years trying to prove there was something illegal about the origin of the Russia investigation, indicted Sussmann on one count of lying to the FBI.

But not for lying about the data — Sussmann was charged with lying about whom he represented at the meeting. According to the indictment, Sussmann told Baker that he wasn’t there on behalf of a particular client. He later billed the meeting to the Clinton campaign, although he was on retainer with it, so the economic effect was nil.

It seems highly unlikely that anyone in DC could have failed to realize that Perkins Coie represented the DNC and the Clinton campaign. And indeed the only evidence that Sussmann failed to disclose it during the meeting is in notes on the handoff call to Baker’s deputy Bill Priestap taken after the meeting.

“Said not doing this for any client,” Priestap wrote, followed immediately by “Represents DNC, Clinton Foundation, etc.”

Baker testified to Congress that it would have made no difference to the investigation if Sussmann had disclosed that he was there on behalf of a client — or multiple clients, which is one possible interpretation of the phrase “not here on behalf of a particular client.” And indeed Sussmann pointed this out in his motion to dismiss the case, arguing that his lie, if indeed it was a lie, fails to satisfy the materiality requirement under 18 U.S. Code § 1001.

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But Judge Cooper disagreed, finding that materiality is an issue of fact for the jury.

“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. Sussmann offers no legal authority to the contrary,” he wrote. “Whether Sussmann’s alleged statement was in fact capable of influencing either the commencement or the later 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,” Judge Cooper concluded, adding that “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 matter of law, the Court is unable to make that determination as to this alleged statement before hearing the government’s evidence. ”

The case will go to trial on May16 in DC. After which Durham will finally arrest Hillary Clinton, Barack Obama, John Podesta, the DNC, and probably Nancy Pelosi and send them all to Gitmo.

Or, you know, maybe not.

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US v. Sussmann [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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