Lawyers for an attorney who was representing Hillary Clinton’s campaign when he fed information to the FBI ahead of the 2016 election have attempted to get a judge to dismiss the case.
Michael Sussmann, the attorney, was charged in September 2021 with making a false statement to the bureau. When he met with then-FBI lawyer James Baker, he allegedly denied representing any client as he fed evidence purportedly linking then-presidential candidate Donald Trump’s company to a bank in Russia.
A grand jury brought the indictment as part of an investigation being conducted by special counsel John Durham into the origins of the probe into Trump and his campaign. Sussmann has pleaded not guilty.
In court on March 31, Sussmann’s lawyers told U.S. District Judge Christopher Cooper, an Obama appointee, that he should toss the charge.
“To our knowledge—and the special counsel hasn’t found otherwise—never before has as an individual provided a tip to the government and been prosecuted for making a false statement that’s ancillary to the tip itself,” Sean Berkowitz, one of the lawyers, said during the hearing.
None of the allegations made in the indictment or more recent filings show an impact that isn’t “trivial or negligible,” he said.
According to charging documents, Sussmann requested a meeting with Baker in September 2016 and handed over three white papers and data files that allegedly contained evidence showing a secret communication channel between the Trump Organization and servers at a Russian bank, believed to be Alfa Bank.
During the meeting, Sussmann “stated falsely that he was not doing his work on the aforementioned allegations ‘for any client,'” the documents say, “which led the FBI general counsel to understand that Sussmann was acting as a good citizen merely passing along information, not as a paid advocate or political operative.”
In reality, Sussmann was representing the campaign of Clinton—Trump’s rival for the presidency—in addition to Rodney Joffe, an executive at Neustar Inc.
The lie misled the FBI, prosecutors say. If known, the bureau might have asked which clients Sussmann represented and taken additional or more incremental steps before opening an investigation, Andrew DeFilippis, a prosecutor on Durham’s team, told the judge.
“The defendant didn’t just affect the course of investigation. He prompted an investigation. He triggered an investigation, which in the government’s view multiplies the materiality of the false statement because he caused the FBI to initiate a new investigation based on misleading information,” DeFilippis said.
Cooper rarely interjected during the hearing, but did question both parties multiple times, including asking Sussmann’s lawyers whether the fact that the data came as a result of a request from “a competing presidential candidate” was relevant, to which lawyer Michael Bosworth said it wasn’t.
“Data is data no matter where it comes from,” Bosworth said.
Cooper didn’t rule on the motion to dismiss, and it’s not clear when he’ll make a decision.
The case currently is scheduled to go on trial on May 13, with the parties attempting to come to an agreement on the questions that potential jurors will be asked.