Special prosecutor John Durham urged a federal judge not to dismiss charges against attorney Michael Sussmann for lying to the FBI in providing details about possible Trump-Russia ties without disclosing that he worked for Hillary Clinton’s 2016 presidential campaign.

Through a new court filing on March 4, Durham is opposing the intentions of Sussman and his attorneys to have the charges dismissed for actions that were capable of influencing the FBI’s decision to investigate former President Trump’s campaign and alleged Russian collusion. 

To the request for dismissal that Sussmann’s lawyers filed through a motion in mid-February, they argued against saying that their client had not been accused of giving a false statement to the FBI but of lying about whether or not he had a relationship with Hillary Clinton’s presidential campaign. 

“He met with the FBI, in other words, to provide a tip,” Sussmann’s lawyers wrote, according to Fox News, asserting that the false statement alleged in the indictment is “about an entirely ancillary matter” that is “immaterial as a matter of law.”

“There is no allegation in the indictment that the tip he provided was false. And there is no allegation that he believed the tip he provided was false. Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter—about who his client may have been when he met with the FBI—which is a fact that even the Special Counsel’s own Indictment fails to allege had any effect on the FBI’s decision to open an investigation,” the defense added. 

But for the prosecutor, Sussmann’s false statement is far from a side issue. On the contrary, it presents legal relevance, as the mention of the attorney-client relationship with Clinton “would have shed critical light on the origins of the allegations at issue.”

“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,” Durham wrote in his latest filing.

If the case proceeds to trial, the government hopes the evidence will show that the FBI could have taken action before launching a full investigation into the matter.

So it is that Dunham alleges that if the defendant had disclosed to the attorney general, James Baker, he was “providing the information on working on behalf of one or more clients, as opposed to merely acting as a ‘good citizen.'” The FBI would likely have asked “additional questions related to the process of initiating the case,” to assess possible motivations behind it. 

Durham also argued that “evidence will show that it would have been all the more material here because the defendant was providing this information on behalf of the Clinton campaign less than two months prior to a hotly contested U.S. presidential election,” according to Fox. 

Sussmann’s lawyers also argued that going forward with the charges against their client would, among other things, “… 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.”

Judge Beryl Howell, Obama’s nominee to oversee the case, will be the one to decide whether to dismiss the indictment against Sussmann.

U.S. Attorney Durham was appointed in 2019 to investigate the roots of the FBI’s investigation into possible ties between the Trump campaign and Russia.

The prosecutor’s investigations, which led to Sussmann’s indictment, center on a meeting in September 2016 at which the defendant turned over data to the FBI that showed apparent suspicious links between Trump’s presidential campaign computers and a Russian bank.

Durham asserts that during Sussmann’s trial, the “expected testimony of multiple government witnesses will refute the defendant’s argument that the defendant’s false statement was immaterial.”

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