Democratic lawyer Michael Sussmann relied in part on legal analysis by fired FBI agent Peter Strzok when arguing that the false statements charge brought against him by special counsel John Durham should be dismissed.
Sussmann was indicted last year for allegedly concealing his clients, including Hillary Clinton's 2016 presidential campaign, 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 any wrongdoing and has pleaded not guilty.
Lawyers for Sussmann are now asking a federal court to toss the case, arguing that their client did not lie to the FBI when passing along Trump-Russia collusion claims and that even if he had, such a deception would have been been “immaterial.” In claiming that Durham’s prosecution would “chill” future tipsters from coming forward to the FBI, they cited a lengthy post that Strzok wrote for Lawfare in October in which he criticized the special counsel's inquiry. Sussmann’s lawyers echoed and borrowed from the arguments made by Strzok.
“The tipsters who would be chilled are those providing truthful information about criminal wrongdoing that the FBI or other government agencies should be investigating. The fear is that they would later be criminally prosecuted for (purportedly) lying about ancillary matters, such as their motivation for reporting the criminal wrongdoing in the first place,” Sussmann’s team wrote Thursday, adding, “If would-be tipsters or sources fear that an incomplete disclosure will subject them to criminal liability, the FBI would be seriously weakened in its ability to gather information from the public, and recruit and maintain confidential human sources.”
While making this claim, Sussmann’s team cited Strzok’s article, claiming that it was “describing risk to confidential human source recruitment of the Sussmann Indictment, based on his more than 20 years of experience at the FBI.” Strzok began attacking the Durham investigation as early as 2020.
DURHAM STANDS BY SNOOPING EVIDENCE IN SUSSMANN CASE
Strzok claimed in October that the Sussmann indictment is "more likely to cause greater damage to the FBI’s ability to recruit and maintain sources as those sources become increasingly fearful that incompleteness will be treated as a criminal false statement” and “in the worst case, it’s part of the previous administration’s effort to scare off investigators looking at anything related to Trump and counterintelligence.”
This was all part of a "chilling effect” sought by former Attorney General William Barr when he appointed Durham to the task, Strzok argued.
Sussmann’s team said “interpreting [the false statements statute's] materiality too broadly creates the additional risk of chilling First Amendment-protected speech” and claimed that “well-intentioned lay people with truthful information about criminal wrongdoing would be discouraged from providing that information to law enforcement for fear of a felony prosecution.”
Sussmann’s lawyers said Thursday that he “voluntarily” met with the FBI in September 2016 “to pass along information that raised national security concerns” and characterized this as meeting with the FBI simply “to provide a tip.”
Strzok claimed that the false statements charge would stop sources from reaching out to the FBI and that Sussmann was “not a counterintelligence professional but a source.”
However, Sussmann was not a random source off the street.
Sussmann was a high-profile cybersecurity lawyer with connections to the Democratic Party. He worked at the Department of Justice from the early 1990s to 2005 as a special assistant U.S. attorney at the DOJ’s criminal division and in the DOJ’s computer crime section.
“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.”
The criminal count against Sussmann makes it clear that Durham believes Sussmann "did willfully and knowingly make a materially false, fictitious, and fraudulent statement or representation" to Baker. Durham said Sussmann’s alleged lie was “material” because it “misled” the FBI “concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of Sussmann’s clients.”
In a filing last week, Durham revealed that he has evidence Sussmann’s other client at the time of the 2016 FBI meeting, known to be former Neustar executive Rodney Joffe, “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President.
Strzok played a key role in opening the Crossfire Hurricane investigation in 2016 and interviewed retired Lt. Gen. Michael Flynn in January 2017. He also helped lead high-profile investigations related to Clinton’s use of an unauthorized private email server during her time as secretary of state.
However, Strzok was removed from special counsel Robert Mueller’s team in 2017 after the discovery of anti-Trump texts with then-FBI lawyer Lisa Page and was later fired from the bureau.
In one of their text message exchanges, Page asked Strzok, “[Trump's] not ever going to become president, right? Right?!”
“No. No he won’t,” Strzok replied. “We'll stop it.”
Michael Horowitz, the Justice Department inspector general, said in his December 2019 report that the FBI "concluded by early February 2017 that there were no such links" between Trump and Alfa Bank. The DOJ watchdog said the FBI's explanations for its Trump-Russia investigation screwups were “unsatisfactory across the board" but was unable to determine whether it was “gross negligence” or “intentional misconduct.”
“I had a minor role in the events in question, insofar as I transferred the material Sussmann gave to Jim Baker ... to the personnel who ultimately supervised and looked into the allegations," Strzok said in October. Strzok said he heard “a briefing or two” about Alfa Bank “and heard sort of updates and kind of the final resolution." Strzok even conceded that it was possible Durham might call him as a witness.
Strzok filed a civil lawsuit against Barr, the FBI, and FBI Director Christopher Wray in August 2019, claiming he was wrongfully terminated from his job. Last month, the Justice Department moved to block a subpoena to depose Trump as part of Strzok's wrongful termination suit.
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Horowitz suggested that Strzok's work could have been biased. When the bureau unearthed tens of thousands of Clinton emails in late September 2016 on the laptop belonging to Huma Abedin’s husband, disgraced former New York congressman Anthony Weiner, Strzok and other FBI leaders dragged their feet on investigating for weeks.
"We did not have confidence that Strzok’s decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias," Horowitz said.
FBI agent John Robertson, who worked in the bureau's child sex crimes unit in New York, found tens of thousands of Clinton emails in late September 2016 on the laptop belonging to Weiner. But for weeks after being alerted, top FBI leaders, including Strzok, took little to no action to investigate.