You would think that lying to the FBI is a crime. But it’s not. Only a “material” lie is criminal conduct.
That distinction is at the heart of the defense being mounted by Clinton Campaign lawyer Michael Sussmann. He is being prosecuted by special counsel John Durham for lying to then-FBI General Counsel James Baker in September of 2016.
Sussmann gave Baker phony information about how Donald Trump was colluding with Russia-based bank through a “covert communications channel,” according to the indictment. The intent was to prompt the FBI to investigate the Republican nominee for president, leak the information to the Trump-hating media, and damage his chances of being elected over Hillary Clinton.
But that’s not the lie for which the defendant stands accused. Instead, he is charged with lying to the FBI about whom he represented during his September 19th meeting with Baker at FBI headquarters.
The evidence shows that Sussmann assured the FBI that he was merely a concerned citizen and that he was not sharing his information on behalf of a client. Yet, his billing records indicate that his meeting was brokered and financed by two specific clients, the Clinton Campaign and a technology executive later identified as Rodney Joffe.
Ever since he was charged, Sussmann and his counsel have suggested that Baker might have been mistaken in his memory that the defendant had stated he was not working at the behest of any clients.
But in a 48-page motion filed on Monday, Durham dropped several bombshell records that blew a gaping hole through Sussmann’s planned defense. The special counsel produced the contents of three documents that seem to prove conclusively that Clinton’s campaign lawyer lied and memorialized his lie in writing.
An email sent by Sussmann to Baker on the eve of their get together states in relevant part, “I’m coming on my own —not on behalf of a client or company— want to help the Bureau.”
As if that wasn’t incriminating enough, Durham also cited the work notes of two other FBI officials who joined their meeting the next day. Both individuals wrote that Sussmann stated he was “not doing this for any client.” Images of the handwritten notes accompanied Durham’s court filing.
Finally, Sussmann admitted under oath before a congressional committee in December of 2017 that he was not acting on his “own volition,” but at the direction of a client. This is the exact opposite of what he told the FBI.
Durham has skillfully pulled the rug out from under Sussmann. This leaves the accused —who has pleaded not guilty— with one viable defense to the charge against him. He can now only argue that his lie was not a “material” lie under the meaning of the false statements statute, 18 U.S.C. 1001. By any measure, that will be a tough sell.
Under the law, a lie is considered material if it has the “natural tendency to influence, or is capable of influencing, the decision” of a law enforcement agency such as the FBI. (U.S. v. Gaudin, 515 U.S. 506, 510, 1995)
The government need not show that the defendant’s lie actually influenced the FBI’s decision to launch its investigation, only that it was “capable” of having influence. That fine legal point doesn’t really matter in this case.
It is manifest that the FBI took Sussmann’s claims quite seriously. The Bureau initiated a deep-dive into the back-channel communications canard that he peddled. As with so many of the Trump-Russia allegations, it was eventually discovered to be non-existent. Internet traffic data was manipulated to create the appearance of a Kremlin connection.
It is equally obvious that had the FBI known at the outset that the accusation was the devious handiwork of the Clinton Campaign it would have likely dismissed the matter as the political smear that it was.
Consider, for example, how Hillary Clinton herself tried to exploit the lie. Just days before the presidential election she tweeted, “It’s time for Trump to answer serious questions about his ties to Russia.”
An hour later she followed up with a tweet that referenced Sussmann’s fabricated claim directly, “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russia-based bank.”
It was classic Clinton. She invented the lies, financed them, and helped disseminate them.
Sussmann’s alleged deception was not insignificant. The FBI expended enormous personnel and financial resources to investigate the claim. Its probe was leaked to the media which then assured the public that this constituted even more proof beyond the fictive “dossier” that Trump was a secret Russian asset. That one was also conjured up by Clinton, while Sussmann served as a witting accomplice, according to Durham.
The special counsel has correctly described Hillary’s corrupt machinations as a “joint venture” with others to frame Trump. She conceived the damning narrative to distract from her own email scandal and destroy her opponent with scurrilous falsehoods.
In Hillary’s contorted mind, a lie is only a lie when you get caught.