WASHINGTON (CN) — A longtime cybersecurity lawyer urged a federal judge in Washington on Thursday to toss the government’s case against him, arguing the false statement he is accused of making to the FBI had no impact on its investigation into claims of Trump-Russia collusion in the 2016 presidential election.
Michael Sussmann has pleaded not guilty to a single charge of making a false statement to the FBI. He is accused of falsely stating that he was not representing any clients when he met with then-FBI General Counsel James Baker in 2016 and provided him with data files allegedly containing evidence of secret communications between then-presidential candidate Donald Trump and Russia’s Alfa Bank.
Prosecutors working for Special Counsel John Durham – who is leading an investigation into the origins of the Trump-Russia probe – say that during the one-on-one meeting, Sussmann hid that he was representing Democrat Hillary Clinton’s presidential campaign and an unidentified “U.S. technology expert,” who has since been identified as Rodney Joffe.
Sussmann's defense attorney Michael Bosworth told U.S. District Judge Christopher Cooper on Thursday that his client’s alleged false statement was not “material” to the FBI’s subsequent investigation, which found no evidence to support the Trump-Alfa Bank claims.
Whether Sussman falsely represented that he was not representing any clients during the meeting could not have impacted whether the FBI decided to launch a probe, Bosworth said.
He added that Sussmann’s indictment does not allege that the tip is involved, rather the statement he is being charged for “is not a statement about the subject of the investigation."
“You haven’t ever seen a case like this where someone who provided a tip to the government was charged with making a false statement about something other than the tip because the tip is obviously, you know, the subject of investigation here,” Bosworth said.
What’s more, he added, is that the government’s evidence does not show that the FBI ever asked Sussmann where the data came from.
“If the source of this information was so critical to the government’s investigation – it mattered so much – you think at some point, someone would have [asked],” he said.
Cooper posited that question to Andrew DeFilippis, an assistant counsel for Durham, and asked, “Wouldn’t a natural question have been, ‘where did this stuff come from?’”
“The defendant lulled the FBI general counsel into thinking that the defendant was separated from the origins of the data … he wasn’t being paid for this work, he was coming as a good citizen and therefore made it less likely that they would think he would answer those crucial questions,” DeFillipis said.
The prosecutor later added that, even if the bureau “could have asked more or might have asked more, it doesn’t affect the objective standard that this statement would have a tendency, or could have a tendency, to affect decision-making.”
The judge, an Obama appointee, also asked what different actions the FBI might have taken had it known the source of the data.
“Not only might they have asked who the client was, but the indictment itself said the FBI might have taken additional or incremental steps before opening or closing an investigation,” Bosworth said. “It also says it might have allocated its resources differently or more efficiently and uncovered more complete information about the reliability and provenance of the recorded data at issue.”
At the end of the hearing, Sussmann’s attorney said it is “simply nonsensical” that his client caused the FBI not to ask about the data source.
“Sussmann is a lawyer – it’s not like he’s sitting on a pool of DNS data,” Bosworth said. “They knew it came from someone other than Mr. Sussman and they knew it because that’s obvious from the nature of the information.”
The D.C. Circuit has previously ruled that a false statement is material when it “has a 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.”
Sussmann, who has worked for the Justice Department, resigned from his position at Seattle-based law firm Perkins Coie after being indicted last September.
He is scheduled to go to trial by jury on May 16, and if convicted faces up to five years in prison.
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