This week, a former Clinton campaign lawyer was in court with his counsel to fight the indictment by Special Counsel John Durham alleging a false statement to federal investigators. At points, however, Michael Sussmann sounded more like Michael Flynn in arguing that, even if he gave false information, it was trivial and did not warrant a criminal charge. The one missing element, however, was the prior host of liberal legal experts shouting down the defense as frivolous and heralding the prosecution.
I was critical of the charge against Flynn as well as the bizarre and abusive treatment that he received by the trial court. Yet, legal experts on CNN and other media outlets insisted that Flynn’s arguments were meritless. They insisted that, even though Flynn acknowledged that the FBI knew of his meeting with the Russians, he was still not forthcoming on everything that they discussed.
Despite my repeated disagreement with Flynn over his reckless comments, the concern is that 18 USC §1001(a)(2) allows prosecutors to charge on any misleading or false statement made in often tense or unguarded conversations with a target.
Sussmann’s counsel is raising that same type of defense and insisting that, while he may have hidden the fact that he was working for Hillary Clinton in trying to start a federal investigation targeting Donald Trump, it was immaterial or trivial.
In the indictment, Sussmann is accused of “mak[ing] a materially false, fictitious, and fraudulent statement or representation” in conversations with the then General Counsel of the FBI James Baker. Durham argued that “The defendant provided the FBI General Counsel with purported data and ‘white papers’ that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank.”
That bank was Alfa Bank and Sussmann’s effort paralleled the work of his partner at the law firm Perkins Coie, Marc Elias, in pushing the Steele Dossier in a separate debunked collusion claim.
The Clinton Campaign’s Alfa Bank conspiracy was found to be baseless but the FBI did not know that it was being offered by someone being paid by the campaign to spread the claim. Had they known, Durham alleges the department might have been able to avoid the investigation costs and effort spent on the Alpha matter.
Sussmann is now pulling a full Flynn and arguing that, even if he lied, it was not “materially false” or materially impacted the investigation. It was instead “ancillary” to the “tip itself.”
One line stood out. Sussmann’s attorney Michael Bosworth insisted “This is an unprecedented false statement prosecution.” Yet, former Special Counsel Robert Mueller brought a series of relatively minor false statement claims against Trump officials that ultimately led to brief periods of incarceration.
Attorney Alex van der Zwaan and adviser George Papadopoulos were charged by Mueller with single counts under 18 USC 1001. Virtually all of the charges were for lying to investigators or entirely unrelated charges. Papadopoulos spent all 14 days in jail. Van der Zwaan spent 30 days.
In some ways, Sussmann’s hearing could not have come on a worse day. As he was in court defending his hiding the effort of the Clinton campaign to push this false claim on Alfa Bank, the FEC was fining the Clinton Campaign and the Democratic National Committee for hiding its funding of the Steele Dossier. We previously discussed allegations that Marc Elias, the former general counsel for the Clinton Campaign and partner at the firm Perkins Coie, lied to conceal the campaign’s funding of the infamous Steele Dossier.
The timing could not be worse for Sussmann.
Yet his former partner Elias may be a source of hope for Sussmann. Elias has previously been sanctioned for his conduct in litigation and recently lost an effort to gerrymander the Maryland voting districts. While the alleged Elias’ lies would ordinarily seem a professional liability for any attorney, they seem an actual professional attraction for Elias. Elias has been accused of making millions from gerrymandering and challenging election victories by Republicans (while condemning such actions by Republicans as “anti-Democratic”).
The motion to dismiss is now before US District Judge Christopher R. Cooper. The trial is set for May 13.