John Durham is arguing that a Democratic cybersecurity lawyer’s alleged lies to the FBI while pushing refuted collusion claims in 2016 really did matter as the defendant tries to throw out the case by claiming he did not lie and that even if he did, the lie was “immaterial.”

Michael Sussmann was indicted last year on charges of concealing his clients — Hillary Clinton's 2016 presidential campaign and “Tech Executive-1,” known to be former Neustar executive Rodney Joffe — from FBI general counsel James Baker when he pushed since-debunked claims of a secret backchannel between the Trump Organization and Russia’s Alfa Bank.

Sussmann denies wrongdoing, pleaded not guilty, and called upon a federal judge to dismiss the case against him last month, even relying in part on legal analysis by fired FBI agent Peter Strzok.

The special counsel fired back Friday.

“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,” Durham wrote. “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 said if Sussmann had told the truth, it could have affected how the FBI chose to proceed, with options including a full investigation, a preliminary investigation, an assessment, delaying until after the election, or declining to investigate altogether, noting that “the source and origins of the information” matter to the FBI.

“Here, 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 wrote. "They might have asked, for example, whether the defendant’s clients harbored any political biases or business motives that might cast doubt on the reliability of the information."


Durham revealed last month that he has evidence that Sussmann’s other client, Joffe, “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President. The special counsel said in October that Joffe “exploited his own company’s access to the sensitive internet data of a high-ranking executive branch office of the U.S. government, both before and after the Presidential election."

Sussmann’s lawyers said last month that he met with the FBI in September 2016 “to pass along information that raised national security concerns” and characterized this as simply “to provide a tip.” The lawyers contended that Sussmann was “charged with making a false statement about an entirely ancillary matter — about who his client may have been when he met with the FBI — which is a fact that even the Special Counsel’s own indictment fails to allege had any effect on the FBI’s decision to open an investigation.”

Durham said “the defendant made his false statement directly to the FBI General Counsel on a matter that was anything but ancillary: namely, the existence … of attorney-client relationships that would have shed critical light on the origins of the allegations at issue.” The special counsel stressed that Sussmann’s alleged lie “was capable of influencing both the FBI’s decision to initiate an investigation and its subsequent conduct of that investigation.”

“Mr. Sussmann did not make any false statement to the FBI,” Sussmann’s defense team claimed. “But in any event, the false statement alleged in the indictment is immaterial as a matter of law. Furthermore, 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.”

Durham said that argument was nonsense.

“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. He then chose to lie about the clients who were behind those allegations,” the special counsel wrote. “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 noted Friday that Joffe “had a history of providing assistance to the FBI on cyber security matters, but decided in this instance to provide politically-charged allegations anonymously through the defendant and a law firm that was then-counsel to the Clinton Campaign."

Joffe revealed in a deposition last month that he invoked his Fifth Amendment rights when asked to testify in front of Durham’s grand jury.

Durham has also said Sussmann told a U.S. government agency, widely believed to be the CIA, about the phony Russian bank connection in a February 2017 meeting, where Sussmann again allegedly misled about who his client was. The special counsel said Sussmann claimed that data he had access to “demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations.” Durham emphasized that he found "no support for these allegations.”

The special counsel said Joffe “exploited his access to non-public and/or proprietary Internet data" and tasked researchers to mine internet data to establish “an inference” and “narrative” tying Trump to Russia. Durham said Joffe indicated he was doing this to please certain “VIPs” on the Clinton campaign.


The Clinton campaign touted the Alfa Bank claims in the closing days of the 2016 election, but special counsel Robert Mueller, the FBI, and a bipartisan Senate Intelligence Committee investigation did not uncover evidence of its veracity.