Judge Lets Durham Prosecution Go Ahead, Leaving Key Question For Jury

(TPM Illustrations/Getty Images)

Special Counsel John Durham will get to proceed with his prosecution of a lawyer that he’s accused of being in cahoots with the global Hillary Clinton conspiracy, after a federal judge denied a motion to dismiss the case.

U.S. District Judge Christopher Cooper for the District of Columbia found that it would be up to a jury to determine the validity of arguments from attorney Michael Sussmann, who says that the lie he is accused of telling was not material to the FBI.

The ruling offered a look at how Judge Cooper regards the case, which former DOJ officials have described as an attempt to realize in prosecutorial form what President Trump long claimed rhetorically: that the 2016 Trump-Russia scandal was in fact the product of malefactors in federal law enforcement, all working at the behest of the Clinton campaign.

Trump re-upped that allegation in a recent lawsuit, which extensively cited Durham’s investigation. In September, Durham, a special prosecutor appointed by Bill Barr, charged Sussmann with false statements to the FBI, alleging that the lawyer failed to tell the FBI’s general counsel in 2016 that he was offering the bureau a tip on behalf of a client.

The tip had to do with a theory that Trump Organization computers were communicating with the servers of a Russian bank. That assertion has now largely been disproven.

Sussmann had been working for the Clinton campaign and for Rodney Joffe, a tech industry executive with access to internet communications data. Durham has alleged that Sussmann sought to obscure that fact when delivering the Trump organization tip to James Baker, the FBI general counsel at the time.

Sussmann’s attorneys had argued that Durham’s “false statements” charge was flimsy, in part because Durham could not credibly claim that the lie had played a significant role in FBI decision-making about the Trump-Russia investigation.

If the alleged lie itself was immaterial, the argument went, then Judge Cooper should throw the case out.

It was a high standard to meet, and Cooper found that the question should go to the jury.

“Whether Sussmann’s alleged statement was in fact capable of influencing either the commencement or the later conduct of the FBI’s investigation is a very different question, and one that the parties hotly dispute,” Judge Cooper wrote.

“The battle lines thus are drawn, but the Court cannot resolve this standoff prior to trial,” he added later, citing a Supreme Court case which found that questions of materiality “must be answered by a jury.”

There’s only one witness to the alleged lie — Baker. Sussmann’s attorneys have cited evidence which suggests that Baker’s recollection has shifted over time.

Durham parried that last week with a court filing that revealed a text in which Sussmann told Baker, “I’m coming on my own — not on behalf of a client or company — want to help the bureau.”

Cooper didn’t betray any other feelings about these allegations or the case more broadly in the ruling.

Read the judge’s order here:

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