OPINION: This article may contain commentary which reflects the author's opinion.
A federal judge has rejected a bid by Clinton campaign lawyer Michael Sussmann to “strike” a “factual background” section of Special Counsel John Durham’s early February court filing.
Last month, Sussmann’s legal team filed a motion demanding that the court remove portions of the Feb. 11 filing that included the “Factual Background” section by claiming that it would “taint” a jury, Fox News reported Thursday evening.
“I’m not going to strike anything from the record,” noted U.S. District Court for the District of Columbia Judge Christopher Cooper during a status hearing. “Whatever effect the filing has had has already passed.”
The Epoch Times reported in February:
…Sussmann was representing the Clinton campaign when in 2016 he passed along information to an FBI counsel. His lawyers say the documents “raised national security concerns” while prosecutors describe them as purportedly detailing a covert channel between a Russian bank and the business of Donald Trump, Clinton’s rival at the time.
Sussmann was charged with lying to the FBI because he falsely told the counsel he was not providing the allegations to the FBI on behalf of any client despite presenting the information on behalf of the Clinton campaign, prosecutors say.
In a filing in February, Sussmann’s lawyers moved to dismiss the charge, claiming their client “did not make any false statement to the FBI” but even if he had, “the false statement alleged in the indictment is immaterial as a matter of law.”
“Allowing this case to go forward would 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,” the filing stated.
Durham’s team responded by calling his claims “absurd” and asked the federal court in the District of Columbia to proceed.
“Far from finding himself in the vulnerable position of an ordinary person whose speech is likely to be chilled, the defendant – a sophisticated and well-connected lawyer – chose to bring politically-charged allegations to the FBI’s chief legal officer at the height of an election season,” Durham wrote in his court filing.
“He then chose to lie about the clients who were behind those allegations. Using 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,” Durham, who was appointed by former Attorney General William Barr to investigate the origins of the ‘Russiagate’ probe, noted.
“And far from being immaterial, they went on to say that ‘the defendant’s false statement was capable of influencing both the FBI’s decision to initiate an investigation and its subsequent conduct of that investigation,” the filing continued.
In its response to the Sussmann filing, Durham’s team noted: “The defendant’s 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.”
“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’s team continued.
If the case does go to trial, Durham will likely argue that the evidence proves the bureau could have done something prior to starting a full investigation into the matter, to include an assessment, and should have delayed making a decision until after the 2016 election or declined to have launched a probe at all.
Also in his filing, Durham suggested that were it not for Sussmann’s allegedly false statement to the FBI, the Russiagate probe of then-GOP presidential nominee Donald Trump’s campaign would never have happened.
“Had the defendant truthfully informed the FBI General Counsel that he was providing the information on behalf of one or more clients, as opposed to merely acting as a ‘good citizen,’ the FBI General Counsel and other FBI personnel might have asked a multitude of additional questions material to the case initiation process,” Durham told the court in a memo filed late last week.
“Given the temporal proximity to the 2016 U.S. presidential election, the FBI also might have taken any number of different steps in initiating, delaying, or declining the initiation of this matter had it known at the time that the defendant was providing information on behalf of the Clinton campaign and a technology executive at a private company,” he added.