Michael Sussmann, the former Clinton campaign lawyer indicted for lying to the FBI, is trying to get the charge against him thrown out. This past weekend, Special Counsel John Durham filed an objection to Sussmann’s motion to dismiss. Writing for Just the News, John Solomon pointed out that Sussmann’s deception could well have changed much about Donald Trump’s first three years as president. But really at stake is the integrity of all future political campaigns. If one candidate’s team can, with impunity, trick a federal law enforcement agency into investigating a rival candidate, America will become nothing more than a banana republic in which elections are won by the candidates who can play the dirtiest.
The case against Sussmann, Durham argued, comes down to whether his deception constituted a materially false statement. When Sussmann first approached the FBI with alleged evidence that then-candidate Trump had established a backchannel of communication with the Russians, he stated that he was not doing so on behalf of any third party. This was not true, though, since he was at the time on the payroll of Hillary Clinton’s campaign.
Materially False Statement
Sussmann wants the court to believe this lie was not material – in layman’s terms, that it had no effect on the FBI’s decision to open an investigation into the Trump campaign. Federal law holds that only a “materially false fictitious, or fraudulent statement or representation” may be subject to criminal prosecution. The Supreme Court’s established definition of a “materially” false statement is one that has “a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.”
It is not necessary for the government – represented in this case by Durham – to prove the statement in question did affect the FBI’s decision on whether to investigate, only that it was capable of being an influencing factor. As Durham argued in his latest filing, the FBI would surely have had reason to doubt the validity of Sussmann’s information, had it been aware that he was working for Trump’s presidential campaign opponent:
“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 [emphasis Durham’s].”
The FBI was at the time run by people who, the evidence suggests, did not want to see Trump become president, and so one could speculate that the Bureau might have launched its investigation of Trump even if it had been aware Sussmann was working for the Clinton campaign. The court cannot possibly go on the assumption that the FBI was politically corrupt though, and it therefore must believe the FBI general counsel, who met with Sussmann on Sept. 19, 2016, would have viewed the latter’s allegations about Trump with skepticism had he known Sussmann was working for Clinton.
Had the lawyer come clean about whose bidding he was doing when he showed up at the J. Edgar Hoover Building, it is possible the FBI might never have opened its probe into the Trump campaign. Robert Mueller would not have been appointed to take over that investigation. Trump’s first three years in the White House would not have been clouded by the whole charade. So much might have been different.
It seems unlikely that Sussmann’s motion to dismiss will meet with success, but one never knows, of course. The Supreme Court holds that it is for a jury to decide whether a false statement is “material” or not, and so a dismissal of Sussmann’s indictment before his trial would go against the Court’s jurisprudence.
Regardless, Sussmann’s punishment, if he is convicted, will not amount to much. Besides, Trump and his supporters are more interested in finding out how many more indictments are yet to come – and how deep into the Trump-Russia hoax Durham will dig before the end.
~ Read more from Graham J. Noble.