{"id":1317984,"date":"2022-02-20T11:13:18","date_gmt":"2022-02-20T16:13:18","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1317984"},"modified":"2022-02-20T11:13:55","modified_gmt":"2022-02-20T16:13:55","slug":"michael-sussmanns-lawyers-its-ok-if-he-lied-to-the-fbi","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/michael-sussmanns-lawyers-its-ok-if-he-lied-to-the-fbi\/","title":{"rendered":"Michael Sussmann\u2019s Lawyers: It\u2019s OK If He Lied To The FBI"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">22<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fmichael-sussmanns-lawyers-its-ok-if-he-lied-to-the-fbi%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1317984&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/02\/Screen-Shot-2022-02-18-at-1.54.40-PM.png\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>On Feb. 17, attorneys for Michael Sussmann, the former attorney for the Hillary Clinton campaign, filed a <a href=\"https:\/\/www.scribd.com\/document\/559721354\/Michael-Sussmann-s-motion-to-dismiss\">motion to dismiss<\/a> the criminal case pending against him in the D.C. district court. Special Counsel John Durham charged Sussmann in September 2021, in a one-count indictment, with lying to former FBI General Counsel James Baker in violation of 18 U.S.C. \u00a7 1001(a)(2).<\/p>\n<p>Specifically, the indictment charged that when Sussmann met with Baker on September 19, 2016, and provided him \u201cwhite papers\u201d and data files purporting to show the Trump organization had established a secret communications channel with the Russia-connected Alfa Bank, Sussmann falsely claimed he was not acting on behalf of a client. In truth, the indictment alleged, Sussmann was working both for the Clinton campaign and an unnamed \u201cU.S. technology industry executive,\u201d since identified as Rodney Joffe.<\/p>\n<p>In seeking dismissal of the Section 1001 false statement charge, Sussmann\u2019s attorneys argue that even if the allegations in the indictment are the truth\u2014something they dispute\u2014the facts alleged do not constitute a crime because Sussmann\u2019s alleged lie to Baker was not \u201cmaterial.\u201d And, as Sussmann\u2019s lawyers stress, Section 1001 criminalizes only \u201ca <em>materially <\/em>false, fictitious, or fraudulent statement or representation.\u201d<\/p>\n<p>Sussmann\u2019s lie to Baker, that he was not representing any clients in sharing the white papers and data about the purported Alfa Bank-Trump connection with the FBI, was immaterial, Sussmann argued in his motion, because \u201cthe only decision that the agency could try to make is the decision whether to <em>initiate <\/em>an investigation in the first place.\u201d \u201cAfter all, absent an existing investigation, there is no other formal exercise of governmental power that a false statement could conceivably influence,\u201d the argument continued.<\/p>\n<p>Whether the government believed Sussmann was acting on his own, or as a representative of Joffe and the Clinton campaign, is immaterial, Sussmann argued, because the government did not charge him with providing a false tip to the FBI. Under these circumstances, his motive for passing on the tip was entirely irrelevant to the government\u2019s decision to investigate the Alfa Bank allegations, Sussmann claimed.<\/p>\n<p>In support of his position, Sussmann cited a variety of case law involving situations in which the courts held alleged lies to government officials were immaterial, arguing those situations were analogous to his own. Sussmann also argued that reading the \u201cmateriality\u201d element of Section 1001 too broadly raises serious constitutional and other concerns.<\/p>\n<p>For instance, \u201ca person could be criminally prosecuted for providing truthful information to a government agency (e.g., a terrorist threat) simply because she lied about her motivation for reporting that information (e.g., seeking revenge after a failed relationship with the terrorist),\u201d Sussmann argued. Such an understanding of \u201cmateriality,\u201d would \u201cchill valuable First Amendment speech, and intrude on legal advocacy and lawyer-client relationships,\u201d Sussmann suggested.<\/p>\n<p>While Sussmann\u2019s arguments sound persuasive in isolation, they falter when considered against controlling circuit precedent and the totality of the facts alleged in the indictment.<\/p>\n<p>As the D.C. Circuit Court of Appeals has explained, a false statement is material under Section 1001 when it has \u201ca natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the agency to which it is addressed.\u201d <em>United States v. Moore<\/em>, 612 F.3d 698, 701 (D.C. Cir. 2010). Further, case law holds that what matters is the false statement\u2019s potential effects on the general functioning of the agency, which includes not merely the decision to open an investigation\u2014the discrete decision on which Sussmann focuses\u2014but also the FBI\u2019s general approach to investigating tips.<\/p>\n<p>It is this latter, broader aspect of materiality that the special counsel relied upon in charging Sussmann with violating Section 1001, as demonstrated by the indictment\u2019s allegations that Sussmann\u2019s false statement \u201cthat he was not acting on behalf of any client\u201d could have prevented the FBI from uncovering that Joffe \u201chad exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump.\u201d<\/p>\n<p>Here, it is important to remember that the law on materiality is clear that the falsehood need not actually influence the agency\u2019s decision-making process, but merely needs to be \u201ccapable\u201d of doing so. Thus, while Sussmann attempts to overcome the materiality argument in his brief by focusing on the many \u201cmight haves\u201d or \u201ccould haves\u201d alleged in the indictment, the special counsel\u2019s focus on such possibilities is entirely appropriate.<\/p>\n<p>Durham\u2019s team will likely make these and many more arguments when it responds to Sussmann\u2019s motion to dismiss. It also wouldn\u2019t be surprising if before responding the special counsel\u2019s office obtains (or unseals) additional indictments that provide further support for the argument that Sussmann\u2019s lie was material.<\/p>\n<p>We should know more within the next couple of weeks.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is a senior contributor to The Federalist. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>On Feb. 17, attorneys for Michael Sussmann, the former attorney for the Hillary Clinton campaign, filed a motion to dismiss the criminal case pending against him in the D.C. district &#8230;<\/p>\n","protected":false},"author":1,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1317984","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1317984","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1317984"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1317984\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1317984"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1317984"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1317984"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}