- John Durham's prosecutors sparred with Michael Sussmann's lawyers at a court hearing Thursday.
- The defense described Durham's indictment against Sussmann as "over-criminalization" that defies Supreme Court precedent.
- They also said Sussmann's prosecution has a "chilling effect" on tipsters who want to provide information to the government.
Former Hillary Clinton campaign attorney Michael Sussmann's defense lawyers argued on Thursday that the special counsel John Durham's indictment against Sussmann is "an unprecedented false statement prosecution" that runs afoul of Supreme Court precedent.
"Never before has an individual provided a tip to the government [and] been prosecuted for making a false statement that's ancillary to the tip itself," Sussmann's lawyer, Michael Bosworth, told US District Judge Christopher Cooper.
He added that Durham is "embracing a theory of materiality that is virtually unbounded."
Thursday's hearing centered around Sussmann's motion to dismiss Durham's indictment charging him with one felony count of making a false statement to the FBI. Sussmann has pleaded not guilty.
Durham was appointed special counsel in 2020 and tasked with investigating the origins of the FBI's Russia investigation. He made headlines in February after the right-wing media seized on a court filing from his office and falsely claimed that it showed the Clinton campaign illegally spied on the Trump campaign and White House.
Bosworth, a former federal prosecutor in Manhattan, argued on Thursday that "it's notable the government has not cited a single case in support of that theory" of materiality. Specifically, he said that Durham's indictment "doesn't pass muster" because in the defense's view, it doesn't satisfy three core points:
- To be material, a false statement has to relate to a specific decision the government made.
- The false statement has to have a "sufficient nexus or connection" to that decision.
- The false statement has to have an effect on that decision that is more than "trivial."
Durham charged Sussmann last year with lying to the FBI during a conversation with then FBI general counsel James Baker in 2016. Durham's indictment said that Sussmann "lied about the capacity in which he was providing" allegations to the FBI about what he claimed was a "secret communications channel" between the Trump Organization and Russia's Alfa Bank.
The indictment alleged that Sussmann lied to the FBI when he told Baker he wasn't working on behalf of any client.
In fact, the indictment said, Sussmann was acting on behalf of the Clinton campaign, the tech executive Rodney Joffe, and the internet company Neustar.
The "only false statement here," Bosworth said Thursday, is that Sussmann misrepresented who he was working for when he approached the government to provide information.
"There's no allegation in the indictment that the tip itself was false," Bosworth said, adding that Sussmann misrepresenting who he worked for did not directly relate to the core investigative work that the FBI was doing at the time.
He also noted that there is no evidence that the government or anyone working for the FBI asked Sussmann about the source of his information.
"Nobody asked about it, whether it was from a client or not … It's going to be really difficult for the government to establish that any of this is material," Bosworth said.
He also later described Durham's theory as "overcriminalization" that defies Supreme Court precedent.
"That's exactly the kind of overreaching, overbroad approach to the criminal law that the court has really rejected," Bosworth said.
And he noted that the court should consider the "impact that this will have on the willingness of individuals to come forward with tips" about suspected criminal conduct "and on lawyering in general."
"That will unquestionably have a chilling effect on the willingness of individuals to bring tips to the government," Bosworth said, adding that in Sussmann's case, "it is astonishing that the special counsel has charged a well-respected national security lawyer with bringing a tip" to the government that investigators "don't even believe was bad, that they don't even believe was false."
That would not be "good for anybody," he said.
Andrew DeFilippis, a prosecutor in Durham's office, countered that Sussmann's statement was material because it would have been "relevant" for the FBI to know if the conveyor of the allegation was coming forward as a good citizen or as a paid political operative.
Cooper asked DeFilippis to note specifically what actions the government believes the FBI took in response to Sussmann's statements.
"The government's theory is not that his alleged statement would have caused the FBI to open or not open an investigation or to devote more or fewer resources to that investigation," Cooper said. "The effect was that it lulled them into not asking a series of follow-up questions about the sources and origin of the underlying data which, in your view, would be material to the functions of the FBI."
DeFilippis conceded that point but said it is "paramount" for the FBI to be aware of the motivations and background of a government tipster.
But Bosworth later latched onto the prosecution's acknowledgment that there is no evidence Sussmann's underlying tip itself was false.
It is "significant" that Durham's office has "conceded that they're not alleging that the tip that Mr. Sussmann provided was false," he said. "That underscores what an unprecedented prosecution this is."
Cooper previously accused prosecutors of creating a "sideshow" with a court filing last month that former President Donald Trump and his allies falsely claimed provided proof that he was illegally spied on by the Clinton campaign.
In the February filing, Durham's office raised potential conflicts of interest involving Sussmann's defense team from the law firm Latham & Watkins. Among other things, the court filing noted that Latham & Watkins had previously represented other people involved in the Durham investigation and that lawyers at the firm have relationships with potential witnesses.
But the filing also recounted a 2017 meeting in which Sussmann relayed to the CIA suspicions about odd internet data suggesting someone with a Russian-made wireless phone may have been connecting to networks at the White House and Trump Tower, among other places. Sussmann had obtained that information from Joffe.
In the court filing, Durham's office said Joffe's company, Neustar, helped maintain servers for the White House and "exploited this arrangement" by mining internet traffic and other data to gather derogatory information about Trump.
The court filing contained almost no new information and presented a misleading narrative.
But right-wing news outlets and Trump seized on it, with Fox News inaccurately declaring that Durham had uncovered evidence that the Clinton campaign paid a technology firm to "infiltrate" a White House server.
A closer review of the filing showed that it did not allege any of the things Trump and conservative pundits claimed, and Durham himself later said that "members of the media" may have "misinterpreted" the claims in the February filing.
Sussmann's legal team also asked to strike those details from the motion, saying the filing was unnecessary because Sussmann had already understood the issues raised in it and waived any potential conflicts. They also accused Durham's team of operating in bad faith and saying the inclusion of those details was "plainly intended to politicize this case, inflame media coverage, and taint the jury pool."
"Trials are unpredictable," Cooper said the earlier hearing. "I cannot tell you all of the ways these potential conflicts could play out, if at all."
The judge then asked Sussmann if he waived the potential conflicts of interest laid out in Durham's filing.
"I do, your honor," Sussmann responded.
Cooper remarked on how easy it was for him to address the purported conflicts and for Sussmann to formally waive them.
"I didn't need any of that ancillary information to do that," the judge said, referring to the filing from Durham's office.