Bring out the popcorn and soda!

Court: Clinton Campaign Lawyer Michael Sussman Must Stand Trial Over Alleged Lies To FBI In Russia Probe

Mr. Sussmann has moved for pretrial dismissal of the Indictment under Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state an offense. For a statement to be criminal under 18 U.S.C. § 1001, it must be both “false, fictitious, or fraudulent” and “material.” Sussmann’s sole argument for dismissal is that, even taking the allegations in the Indictment as true, his purported misrepresentation to Baker was immaterial as a matter of law and therefore cannot support a conviction under § 1001. The Court will deny the motion.

The standard for materiality under § 1001 in this circuit is whether the statement has “a natural tendency to influence, or is capable of influencing, either a discrete decision or any other function of the [government] agency to which it was addressed.” United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010). Focusing on the first part of the standard, Sussmann argues that his alleged statement to Baker—that he was not at the meeting on behalf of a client—could not possibly have influenced what was, in his view, the only “discrete decision” before the Bureau at the time: whether to initiate an investigation into the Trump campaign’s asserted communications with the Russian bank.

At the outset, Sussmann’s argument that the materiality of his statement must be assessed only in relation to the FBI’s decision to commence an investigation is based on an overly narrow conception of the applicable standard. He largely ignores the second part of the test: whether the statement could influence “any other function” of the agency. Applying that prong of the materiality standard, the D.C. Circuit has stated that “a ‘lie distorting an investigation already in progress’ also would run afoul of § 1001.”

So basically the concept here is that Sussman is pretty much admitting that he lied to the FBI when he said that he was just there as a concerned citizen with information for the FBI and was not representing anyone.  But he argues that whether he was there as a concerned citizen or as a representative of Trump's political opponent was not material to... well anything? 

The Judge points out that even if there had already "been" a decision by the FBI to investigate Trump, that him providing evidence under false pretenses would also qualify him under the statute in question. The argument can certainly be made that the FBI would have (or at least should have) treated this differently had they known that it was at smear attempt from the Clinton campaign, rather than real intelligence from a concerned citizen.

The irony here is that everyone probably knows that the FBI would have used this as an excuse to investigate Donald Trump either way. There is little question that this was more of a "partnership" between the Clinton team and the FBI than it was the Clinton team fooling the FBI into an investigation. I have no doubt that when the FBI asked Sussman if he was working on behalf of anyone that it was more of a nudge nudge wink wink question were the expectation was that Sussman would lie. I would go so far as to say that the FBI (unless they are complete dolts) had to know that the information being presented was indeed dubious and probably not worthy of the two full years and millions of dollars spend investigating it. 

But either way, under the letter of the law Sussman is a criminal. He lied to the FBI knowingly and with every intention of malice. This wasn't a Papadapoulos sort of "misleading statement" where they wanted to confuse his final interview and start date with the Trump campaign, or a supposed General Flynn lie that the FBI interviewers said was not a lie. This was a blatant attempt to mislead, either with or without the FBI playing along. You would need to have some very tortured logic to dismiss this as legal.

Now the fun begins. Let's see if Sussman goes quietly into the night chancing probation, losing his license to practice law, and some hefty fines if found guilty. Or perhaps he cuts a deal and throws someone else under the bus to save his own ass? Of course, Mr Sussman should probably already be on "suicide watch" and would have to go into hiding if he decides to turn on the Clinton syndicate.