WASHINGTON – A lawyer for Hillary Clinton's presidential campaign who was charged by special counsel John Durham with lying to the FBI during a 2016 meeting asked a judge on Thursday to dismiss the indictment, calling it a case of “extraordinary prosecutorial overreach.”
Lawyers for Michael Sussmann said that if the indictment were allowed to proceed, it would “risk criminalizing ordinary conduct, raise First Amendment concerns, dissuade honest citizens from coming forward with tips, and chill the advocacy of lawyers who interact with the government.”
Durham was tasked in 2019 by then-Attorney General William Barr with investigating potential government misconduct during the early days of the investigation into potential coordination between Donald Trump's 2016 presidential campaign and Russia. He was given the title of special counsel in 2020, in the final weeks of the Trump administration, to ensure that he could continue his work once Joe Biden became president.
Sussmann is accused of lying to the FBI's then-general counsel during a September 2016 meeting in which he relayed concerns from cybersecurity researchers about potentially suspicious internet data involving a Russia-based bank and the Trump Organization. Prosecutors say Sussmann misled the FBI by saying during the meeting that he was not acting on behalf of a particular client when he was actually representing the interests of the Clinton campaign and a technology executive who had furnished Sussmann with the data and analysis.
The FBI investigated and ruled out within months the possibility of a secret digital backchannel between servers of the Trump Organization and of Russia-based Alfa Bank — a claim that, if true, could have signaled contact between the Trump orbit and Russia at a time when the FBI was already trying to determine if there was such a connection. The indictment does not charge Sussmann with giving the FBI false information about that matter, but rather about what his lawyers dismissively described as an “ancillary” issue — who his legal clients were at the time of the meeting.
Sussmann's lawyers say he did not lie, but even if he misled the FBI, there is no evidence that the false statement he's alleged to have made is material to the case or affected the bureau's decision to investigate any potential connection between Trump and Alfa Bank. They say allowing the indictment to stand would mean that people could be prosecuted for giving an accurate tip to law enforcement if they weren't upfront about their motivation for doing so.
“So, a jilted ex-wife would think twice about reporting her ex-husband’s extensive gun-smuggling operation lest the FBI later decide to prosecute her for failing to disclose her motivation for turning him in,” the motion states. “If would-be tipsters or sources fear that an incomplete disclosure will subject them to criminal liability, the FBI would be seriously weakened in its ability to gather information from the public, and recruit and maintain confidential human sources.”
The motion to dismiss comes just days after a filing by Durham that created an uproar and was mischaracterized in some media reports — and by Trump himself — as having suggested that the former president had been illegally spied on by allies of the Clinton campaign, even though that was not what the document said.
The filing said the company of the tech executive with whom Sussmann had worked, Rodney Joffe, had helped maintain servers for the White House and said he and cybersecurity researchers he was working with had mined internet traffic for the “purpose of gathering derogatory information” about Trump.
A spokesman for Joffe said he was an “apolitical internet security expert” who had never worked for a political party and was operating under a contract to identify potential cyber breaches or threats against the federal government.
During the course of the work, according to the spokesman, the researchers identified what they thought were concerning anomalies related to Russian-made phones “in proximity” to the Trump campaign and the White House and prepared a report of their findings that was subsequently shared with the CIA.
The White House data that was analyzed was from the time that Barack Obama, not Trump, was president, undercutting the idea that Trump was spied on while in office.
Late Thursday, Durham's team pushed back on suggestions from Sussmann's lawyers that they had tried to taint the jury pool by including the allegations in their filing.
“If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information,” the Durham team wrote.
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