{"id":1361546,"date":"2022-03-07T06:30:00","date_gmt":"2022-03-07T11:30:00","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1361546"},"modified":"2022-03-07T07:54:53","modified_gmt":"2022-03-07T12:54:53","slug":"5-new-special-counsel-arguments-against-a-russia-hoaxers-attempt-to-escape","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/5-new-special-counsel-arguments-against-a-russia-hoaxers-attempt-to-escape\/","title":{"rendered":"5 New Special Counsel Arguments Against A Russia Hoaxer\u2019s Attempt To Escape"},"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\">24<\/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%2F5-new-special-counsel-arguments-against-a-russia-hoaxers-attempt-to-escape%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=1361546&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\/03\/49728735892_363c8b976b_k.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>Special Counsel John Durham demolished a key Russia hoax figure\u2019s attempt to get criminal charges against him dropped.<\/p>\n<p>Approximately two weeks ago, Michael Sussmann\u2019s legal team filed a motion to dismiss the criminal charge the special counsel\u2019s office brought against the former Hillary Clinton campaign attorney. On Friday, the special counsel filed a <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.dcd.235638\/gov.uscourts.dcd.235638.44.0_6.pdf\">response<\/a> that demolished Sussmann\u2019s legal arguments, highlighted several significant facts related to the pending charge, and revealed the ridiculousness of the defense\u2019s attempt to hide behind the First Amendment.<\/p>\n<p>Here are five key takeaways from Durham\u2019s response.<\/p>\n<h2 id=\"1-sussmann-s-alleged-lie-was-material-even-under-the-defense-s-screwy-standard\">1. Sussmann\u2019s Alleged Lie Was Material Even Under the Defense\u2019s Screwy Standard<\/h2>\n<p>In September 2021, the special counsel\u2019s office charged Sussmann 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). As I <a href=\"https:\/\/thefederalist.com\/2022\/02\/18\/michael-sussmanns-lawyers-its-ok-if-he-lied-to-the-fbi\/\">explained<\/a> last month, \u201cSpecifically, the indictment charged that when Sussmann met with Baker on September 19, 2016, and provided him \u2018white papers\u2019 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 \u2018U.S. technology industry executive,\u2019 since identified as Rodney Joffe.\u201d<\/p>\n<p>Late last month, Sussman\u2019s legal team filed a motion to dismiss the criminal charge, arguing that even if he had lied, his falsehood did not constitute a crime because Section 1001(a)(2) criminalizes only \u201ca\u00a0<em>materially\u00a0<\/em>false, fictitious, or fraudulent statement or representation.\u201d Sussmann\u2019s alleged lie, according to defense attorneys, was not material. The government\u2019s response decimated that argument, laying out first the strawmen erected by Sussmann\u2019s lawyers.<\/p>\n<p>\u201cDistilled to its core,\u201d the special counsel began, the defendant\u2019s argument rests on the premise that the only question is whether Sussmann\u2019s alleged lie was material to the \u201cdiscrete decision\u201d of whether the FBI should launch an investigation into the Alfa Bank data and white papers. But materiality is not so narrow, Durham\u2019s response stressed. Rather, \u201ca false statement is material if it has the capability to influence a \u2018discrete decision\u2019 or \u2018any other function of the agency.\u2019\u201d<\/p>\n<p>After stating the correct standard, the special counsel\u2019s office detailed how Sussmann\u2019s lie could have affected the function of the FBI\u2014stressing also that the materiality standard considered the \u201cpotential,\u201d as opposed to actual, effects of the falsehood. For instance, Durham\u2019s team explained, had the FBI known Sussmann presented the Alfa Bank theory to Baker as a representative of the Clinton campaign and Joffe, \u201cthe FBI likely would have asked certain questions and conducted interviews during the investigation that would bear directly upon the information\u2019s reliability and\/or Tech Executive-1\u2019s motivation in providing the information.\u201d<\/p>\n<p>Durham added that, even using the incorrect narrow standard Sussmann posited, his alleged misrepresentation was material because it could have influenced the FBI\u2019s decision-making. Here, Durham stressed the FBI\u2019s decision was not \u201cbinary in nature, i.e., whether or not to initiate an investigation.\u201d Rather, given how the FBI initiates and conducts an investigation, had Sussmann truthfully informed Baker of his clients\u2019 identities\u2014or even that he was working on behalf of a client\u2014the \u201cFBI could have taken any number of steps prior to opening what it terms a \u2018full investigation,\u2019 including, but not limited to, conducting an \u2018assessment,\u2019 [or] opening a \u2018preliminary investigation.\u2019\u201d<\/p>\n<p>Moreover, given the \u201cstringent guidelines\u201d of the DOJ and FBI concerning matters that could potentially affect elections, coupled with \u201cthe temporal proximity to the 2016 U.S. presidential election,\u201d the FBI, had it known that Sussmann was providing the information on behalf of the Clinton campaign, may have opted to delay or decline to initiate an investigation.<\/p>\n<p>The special counsel\u2019s office further stressed that the question of materiality typically presents a jury question, or at a minimum it is premature to decide the issue at this point. In this respect, Durham\u2019s team stressed that the case law Sussmann presented in support of his claim involved cases where the government had already presented its evidence to the jury or involved a challenge to jury verdict on materiality. <\/p>\n<p>In sum, in the government\u2019s response brief, the special counsel refuted six ways to Sunday Sussmann\u2019s claim that his alleged lie was not material, with this pithy summary striking to the heart of the matter: \u201cThe defendant\u2019s 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.\u201d<\/p>\n<p>While Sussmann\u2019s legal team will still have an opportunity to file a reply brief before the court rules, denial of Sussmann\u2019s motion to dismiss is inevitable.<\/p>\n<h2 id=\"2-sussmann-was-not-the-clinton-campaign-s-political-lawyer\">2. Sussmann Was Not the Clinton Campaign\u2019s Political Lawyer<\/h2>\n<p>In addition to refuting Sussmann\u2019s legal argument that his alleged lie to Baker was not \u201cmaterial,\u201d the special counsel\u2019s office countered several factual claims presented by Sussmann\u2019s lawyers in his motion to dismiss. For instance, in seeking dismissal of the criminal charge, Sussmann\u2019s legal team stressed that \u201cthe Indictment makes clear that the FBI and Mr. Baker himself were well aware that Mr. Sussmann was representing the Democratic National Committee at a time when Hillary Clinton, the Democratic nominee for president, <em>was <\/em>the Democratic National Committee.\u201d<\/p>\n<p>Sussmann\u2019s friends in the media have also pushed this narrative since news of the criminal charge against Sussmann first broke. The Washington Post wrote on the day the indictment dropped that legal experts cast doubt on the case, <a href=\"https:\/\/www.washingtonpost.com\/national-security\/john-durham-michael-sussmann-hillary-clinton\/2021\/09\/16\/ed8ba0e6-1696-11ec-a5e5-ceecb895922f_story.html\">framing<\/a> the lie as trivial because \u201cthe indictment itself says the FBI already knew Sussmann was a lawyer for the Democratic National Committee.\u201d<\/p>\n<p>Friday\u2019s response by the special counsel\u2019s office destroyed this talking point by stressing that while \u201cthe FBI General Counsel was aware that the defendant represented the DNC on cybersecurity matters arising from the Russian government\u2019s hack of its emails,\u201d evidence at trial will establish that Baker did not know \u201cthat he provided political advice or was participating in the Clinton Campaign\u2019s opposition research efforts.\u201d<\/p>\n<p>\u201cIndeed, the defendant held himself out to the public as an experienced national security and cybersecurity lawyer, not an election lawyer or political consultant,\u201d Durham\u2019s team continued. Thus, according to the special counsel, \u201cwhen the defendant disclaimed any client relationships at his meeting with the FBI General Counsel, this served to lull the General Counsel into the mistaken, yet highly material belief that the defendant lacked political motivations for his work.\u201d<\/p>\n<p>While case law makes clear that a lie may be material even if the law enforcement officer knows a person is lying at the time, the special counsel\u2019s response provides a strong counter to the press\u2019 propaganda-tinged reporting that Baker clearly knew Sussmann was a Clinton lawyer.<\/p>\n<h2 id=\"3-the-fbi-s-relationship-with-joffe-proves-his-use-of-sussmann-was-suspect\">3. The FBI\u2019s Relationship With Joffe Proves His Use of Sussmann Was Suspect<\/h2>\n<p>The special counsel\u2019s Friday response also countered a second factual argument presented in Sussmann\u2019s Motion to Dismiss concerning Sussmann\u2019s client Joffe. In framing his alleged lie to the FBI as not material, Sussmann argued the indictment includes no explanation as to why the knowledge that Sussmann was representing Joffe \u201cwould have been material to the FBI\u2019s decision whether or not to initiate an investigation when Tech Executive-1\u2014far from being a stranger to the FBI\u2014was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world\u2019s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI.\u201d<\/p>\n<p>Rather than advance Sussmann\u2019s argument, however, Joffe\u2019s \u201clongstanding relationship of trust\u201d with the FBI shows the significance of Sussmann\u2019s statement to Baker that he did not represent anyone in the meeting. The special counsel\u2019s team hammered that point in its response brief: \u201cAs the defendant\u2019s motion reveals, Tech Executive-1 had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign.\u201d<\/p>\n<p>\u201cGiven Tech Executive-1\u2019s history of assistance to law enforcement, it would be material for the FBI to learn of the defendant\u2019s lawyer-client relationship with Tech Executive-1 so that they could evaluate Tech Executive-1\u2019s motivations,\u201d Durham continued.<\/p>\n<p>The significance of this point has escaped the Durham deniers who cast Joffe and his tech friends as merely concerned citizens sharing intel with the government: That Joffe used a private lawyer to peddle the Alfa Bank theory to the FBI, rather than reach out himself, is suspect. The ramifications also don\u2019t end there, because Joffe also used Sussmann to push the Alfa Bank narrative, as well as <a href=\"https:\/\/thefederalist.com\/2022\/02\/18\/5-media-lies-about-the-latest-special-counsel-revelations\/\">claims<\/a> to the CIA that Trump or his associates were using rare Russian cell phones \u201cin the vicinity of the White House.\u201d<\/p>\n<p>But there\u2019s more: Sussmann also shared information from Joffe with the inspector general of the Department of Justice, but without apparently telling the DOJ Joffe\u2019s identity. Instead, Sussman in early 2017, told the Office of Inspector General that his unnamed client \u201chad observed that a specific OIG employee\u2019s computer was \u2018seen publicly\u2019 in \u2018Internet traffic\u2019 and was connecting to a Virtual Private Network in a foreign country.\u201d<\/p>\n<p>If Joffe had a \u201clong-standing relationship of trust\u201d with the FBI, why didn\u2019t Joffe take this information to the FBI? Or if Joffe wanted Sussmann to provide the information to the OIG, why wouldn\u2019t Sussmann disclose that Joffe had been the client who made the observation so the DOJ knew the tip came from a reliable source?<\/p>\n<p>It now also appears that, after the election, Sussmann may have <a href=\"https:\/\/thefederalist.com\/2022\/02\/28\/4-new-things-we-just-learned-about-the-special-counsel-investigation\/\">shared<\/a> Joffe\u2019s Alfa Bank data with two Democrat senators on the Senate Armed Services Committee, prompting further investigation into this second Russia collusion hoax. So, far from supporting Sussmann\u2019s argument that his alleged lie was immaterial, Joffe\u2019s status as a long-standing respected source for the FBI suggests hiding the political motives proved essential to the plot.<\/p>\n<h2 id=\"4-yes-spying-on-the-executive-office-of-the-president-concerned-trump\">4, Yes, Spying on The Executive Office of the President Concerned Trump<\/h2>\n<p>Last week\u2019s response by the special counsel\u2019s office to Sussmann\u2019s Motion to Dismiss also countered the spin the corrupt media launched to downplay news that Joffe had tracked DNS traffic of Trump Tower, Trump\u2019s New York City apartment, a health-care provider connected to a Trump supporter, and the Executive Office of the President, and then took that supposed intel to the CIA.<\/p>\n<p>When that news broke, the usual suspects pounced on the fact that the DNS lookups at the Executive Office of the President occurred before Trump took over as commander-in-chief. However, as Friday\u2019s response made clear, the DNS tracking of the Executive Office of the President was all about Trump.<\/p>\n<p>According to the special counsel\u2019s brief, in Sussmann\u2019s meeting with the CIA, \u201cthe defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (\u2018IP\u2019) addresses affiliated with a Russian mobile phone provider.\u201d The brief continued: \u201cThe defendant further claimed that these lookups demonstrated that Trump and\/or his associates were using a type of Russian-made wireless phone in the vicinity of the White House and other locations.\u201d<\/p>\n<p>In short, that Trump was not president when the DNS spying took place at the Executive Office of the President means nothing: Trump was the target.<\/p>\n<h2 id=\"5-sussmann-should-have-known-better-so-stop-hiding-behind-the-first-amendment\">5. Sussmann Should Have Known Better\u2014So Stop Hiding Behind the First Amendment<\/h2>\n<p>The special counsel\u2019s office concluded its response brief by refuting Sussmann\u2019s argument that the government\u2019s theory of materiality raises serious constitutional concerns and risks \u201cchilling valuable First Amendment speech.\u201d Here, Durham\u2019s team began by ridiculing the hypothetical Sussmann\u2019s lawyers posited as an example of the type of speech potentially chilled\u2014that of a jilted lover afraid to report her ex\u2019s \u201cextensive gun-smuggling operation\u201d to the feds.<\/p>\n<p>\u201cThis comparison is absurd,\u201d the special counsel wrote, stressing that \u201cfar from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant\u2014a sophisticated and well-connected lawyer\u2014chose to bring politically-charged allegations to the FBI\u2019s chief legal officer at the height of an election season.\u201d<\/p>\n<p>\u201cHe then chose to lie about the clients who were behind those allegations,\u201d Durham\u2019s team continued, emphasizing that \u201cusing such rare access to the halls of power for the purposes of political deceit is hardly the type of speech that the Founders intended to protect.\u201d<\/p>\n<p>The special counsel punched down more by noting that Sussmann, \u201cas a former government attorney and prosecutor . . . was well aware that the law required him to be honest and forthright when communicating with the FBI.\u201d \u201cThat lawyers should be honest in their dealings with federal law enforcement agencies is not an imposition that the Constitution prohibits. It is an expectation that undergirds the integrity of our legal system,\u201d Durham concluded.<\/p>\n<p>Of course, the converse is also true: Honest and forthright communications by the FBI and the DOJ \u201cundergirds the integrity of our legal system.\u201d That is why the Spygate scandal is so devastating to our country.<\/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>Special Counsel John Durham demolished a key Russia hoax figure\u2019s attempt to get criminal charges against him dropped. Approximately two weeks ago, Michael Sussmann\u2019s legal team filed a motion to<\/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-1361546","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\/1361546","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=1361546"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1361546\/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=1361546"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1361546"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1361546"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}