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Lawyer in Trump-Russia probe accused of lying can’t nix prosecution

Michael Sussmann is the Republican Party's only prospect when it comes to impugning the credibility of an investigation that linked Trump's campaign to Russian meddling in 2016.

WASHINGTON (CN) — A federal judge refused Wednesday to end the case against a longtime government lawyer accused of making false statements to the FBI when it was investigating collusion in the 2016 presidential election between Russia and the Trump campaign.

“The battle lines thus are drawn, but the court cannot resolve this standoff prior to trial,” U.S. District Judge Christopher Cooper wrote in a 6-page order.

Cooper's decision ripens for Republicans what has been some of the only fruit to grow out of their investigation into the origins of the Trump-Russia probe that has special counsel John Durham at its helm. Durham's case is a narrow one: a single charge of making a false statement to the FBI against Michael Sussmann, a former federal prosecutor who specialized in computer crimes during a 12-year career at the Justice Department.

Sussmann, who has pleaded not guilty, 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 Russia’s Alfa Bank and then-presidential candidate Donald Trump. 

Durham, who himself is a former federal prosecutor from Connecticut, says that Sussmann went into the one-on-one meeting at the FBI without disclosing that he was representing Trump's Democrat opponent in the presidential election, Hillary Clinton, as well as a technology expert now known to be Rodney Joffe.

The judge's ruling comes two weeks after he heard oral arguments on Sussmann's motion to dismiss filed in February.

Sussmann’s attorney Michael Bosworth insisted during the hearing 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.

As Bosworth sees it, the FBI's decision to launch a probe would have been the same regardless of any client relationships Sussmann disclosed or misrepresented during the meeting.

But U.S. Attorney Andrew DeFillipis, who is assisting Durham, said that if the FBI had known who Sussmann’s clients were, the bureau might have taken additional steps before opening or closing a probe, allocated resources differently, and uncovered more complete information about the reliability of the data.

In Wednesday’s ruling, Cooper leaned on the Supreme Court’s unanimous decision in U.S. v. Gaudin, which held that, because materiality is an element, it is a question that generally must be answered by a jury.

“Indeed, all the cases Sussmann cites where courts have found alleged false statements to be immaterial were decided after a trial and on appeal from post-trial motions,” Cooper wrote.

He continued: “So, while Sussmann is correct that certain statements might be so peripheral or unimportant to a relevant agency decision or function to be immaterial … as matter of law, the court is unable to make that determination as to this alleged statement before hearing the government’s evidence. Any such decision must therefore wait until trial.”

Sussmann, 57, resigned from his position at Seattle-based law firm Perkins Coie after being indicted last September. He is scheduled to face a jury trial on May 16 and faces up to five years in prison if convicted.

Representatives for the Justice Department and Boasberg did not respond to requests for comment.

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