Michael Sussmann is the Democratic lawyer who is being prosecuted by special counsel John Durham for lying to the FBI. Back in February, Sussmann’s attorneys filed a motion to dismiss the case arguing that even if their client lied about who he was working for when he brought information about Trump and Alfa Bank to the FBI, that lie was an “ancillary matter.”
Today, the judge held a pre-trial hearing about the request for dismissal and it sounds as if it didn’t go well for Sussmann.
The bulk of Thursday’s hearing was devoted to a motion by Sussmann’s attorneys to throw out the single-count false-statement charge against their client on various grounds. The effort appeared to face an uphill battle because of the relatively high bar to have a criminal case tossed out on a motion to dismiss…
“I obviously don’t have the benefit of the discovery in this case,” the judge said. “Why aren’t these jury questions?”
The judge didn’t issue an immediate ruling but it sounds as if he’s not going to grant the dismissal. In any case, the hearing did reveal some details about the prosecutor’s case. For one thing, Durham’s prosecutors revealed they plan to challenge some of the attorney-client privilege claims made by the defense.
[Assistant US Attorney Andrew] DeFlippis didn’t delve into the details of the dispute during the hearing held by videoconference on Thursday, but he gave one example: He said the Clinton campaign was asserting privilege over communications of Rodney Joffe, a tech executive who compiled the data Sussmann shared with the FBI. The campaign has asserted the privilege even over messages it was not copied on, DeFelippis said.
Rodney Joffe is the cybersecurity expert who put together the data which Sussmann brought to the FBI. He was described as “Tech-Executive-1” in the indictment. Ultimately the FBI did open an investigation and determined there was nothing to it. Hillary’s people pushed the FBI to reopen the investigation even after the 2016 election and the FBI did so but once again they found nothing.
One of the questions that has been raised is whether Joffe and Sussmann knew the data they were supplying to the FBI was bogus from the start, i.e. maybe the goal was just to launch an investigation to harm Trump to offset the one into Hillary’s emails. That came up during today’s hearing as well.
…the prosecutor alluded to what appears to be the operating theory of Durham’s investigation: that someone cooked the data to generate a meritless FBI investigation in a bid to do political damage to Trump.
“That’s a much more complicated issue: whether the data was in whole or in part real, manipulated, or cherry-picked or any of the above,” DeFilippis replied.
The prosecutor seemed to indicate that Durham’s team doesn’t plan to argue at trial that the data was fabricated or torqued, but wants the right to do so if Sussmann’s team tries to argue to the jury that he was simply passing on information that he had every reason to believe was accurate.
So, bottom line, it looks like this case probably is going to trial on May 16 and then we’ll find out what Durham has uncovered and whether a jury agrees that Sussmann lied about his employer and, if he did lie, that the lie was more than just ancillary to the nonsense he was providing the FBI.