Durham Urges Court Not to Dismiss Charge Against Lawyer Who Hid Ties to Clinton Campaign

John Durham speaks to reporters on the steps of U.S. District Court in New Haven, Conn., on April 25, 2006. Bob Child/AP Photo

Special counsel John Durham on March 4 urged a federal judge not to dismiss a charge against a lawyer who lied to the FBI about representing Hillary Clinton’s 2016 presidential campaign.

Michael Sussmann was representing the Clinton campaign when in 2016 he passed along information to then-FBI General Counsel James Baker. His lawyers say the documents “raised national security concerns” while prosecutors describe them as purportedly detailing a covert channel between a Russian bank and the business of Donald Trump, Clinton’s rival at the time.

Sussmann was charged with lying to the FBI because he falsely told Baker he was not providing the allegations to the FBI on behalf of any client, despite presenting the information on behalf of the Clinton campaign, prosecutors say. Sussmann has pleaded not guilty to making a false statement to a federal agent.

In a filing in February, Sussmann’s lawyers moved to dismiss the charge, claiming their client “did not make any false statement to the FBI,” but even if he had, “the false statement alleged in the indictment is immaterial as a matter of law.”

“Allowing this case to go forward 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,” the filing stated. “The Special Counsel’s unprecedented and unlawful overreach should not be countenanced, and the single count against Mr. Sussmann should be dismissed.”

In its reply on March 4, Durham’s team asked the court not to follow the demand.

“The defendant’s false statement to the FBI General Counsel was plainly material because it misled the General Counsel about, among other things, the critical fact that the defendant was disseminating highly explosive allegations about a then-Presidential candidate on behalf of two specific clients, one of which was the opposing Presidential campaign,” their filing said.

“The defendant’s efforts to mislead the FBI in this manner during the height of a Presidential election season plainly could have influenced the FBI’s decision-making in any number of ways.”

If the case proceeds to trial, the government expects the evidence to prove that the FBI could have taken steps prior to initiating a full investigation into the matter, including an assessment, and may have delayed a decision until after the 2016 election or ultimately declined to investigate the matter altogether.

Had Sussmann revealed he was working on behalf of clients, the FBI counsel and other FBI workers might have asked other questions, including whether those clients harbored biases or motives that might cast doubt on the reliability of the information, and the FBI would have likely conducted “additional, behind-the-scenes steps (database checks, case file searches, etc.) to assess the defendant’s potential motivations and those of his client,” the special counsel’s office said.

U.S. District Judge Beryl Howell, an Obama nominee overseeing the case, will now decide whether to dismiss the charge against Sussmann.