In Like Flynn: Clinton Lawyer Adopts a Familiar Defense Against Durham Charge

This week, a former Clinton campaign lawyer was in court with his counsel to fight the indictment by Special Counsel John Durham alleging a false statement to federal investigators. At points, however, Michael Sussmann sounded more like Michael Flynn in arguing that, even if he gave false information, it was trivial and did not warrant a criminal charge. The one missing element, however, was the prior host of liberal legal experts shouting down the defense as frivolous and heralding the prosecution.

I was critical of the charge against Flynn as well as the bizarre and abusive treatment that he received by the trial court. Yet, legal experts on CNN and other media outlets insisted that Flynn’s arguments were meritless. They insisted that, even though Flynn acknowledged that the FBI knew of his meeting with the Russians, he was still not forthcoming on everything that they discussed.

Despite my repeated disagreement with Flynn over his reckless comments, the concern is that 18 U.S.C. §1001(a)(2) allows prosecutors to charge on any misleading or false statement made in often tense or unguarded conversations with a target.

Sussmann’s counsel is raising that same type of defense and insisting that, while he may have hidden the fact that he was working for Hillary Clinton in trying to start a federal investigation targeting Donald Trump, it was immaterial or trivial.

In the indictment, Sussmann is accused of “mak[ing] a materially false, fictitious, and fraudulent statement or representation” in conversations with the then General Counsel of the FBI James Baker. Durham argued that “The defendant provided the FBI General Counsel with purported data and ‘white papers’ that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank.”

That bank was Alfa Bank and Sussmann’s effort paralleled the work of his partner at the law firm Perkins Coie, Marc Elias, in pushing the Steele Dossier in a separate debunked collusion claim.

The Clinton Campaign’s Alfa Bank conspiracy was found to be baseless but the FBI did not know that it was being offered by someone being paid by the campaign to spread the claim. Had they known, Durham alleges the department might have been able to avoid the investigation costs and effort spent on the Alfa matter.

Sussmann is now pulling a full Flynn and arguing that, even if he lied, it was not “materially false” or materially impacted the investigation. It was instead “ancillary” to the “tip itself.”

One line stood out. Sussmann’s attorney Michael Bosworth insisted “This is an unprecedented false statement prosecution.” Yet, former Special Counsel Robert Mueller brought a series of relatively minor false statement claims against Trump officials that ultimately led to brief periods of incarceration.

Attorney Alex van der Zwaan and adviser George Papadopoulos were charged by Mueller with single counts under 18 U.S.C. 1001. Virtually all of the charges were for lying to investigators or entirely unrelated charges. Papadopoulos spent of all 14 days in jail. Van der Zwaan spent 30 days.

In some ways, Sussmann’s hearing could not have come on a worse day. As he was in court defending his hiding the effort of the Clinton campaign to push this false claim on Alfa Bank, the FEC was fining the Clinton Campaign and the Democratic National Committee for hiding its funding of the Steele Dossier. We previously discussed allegations that Marc Elias, the former general counsel for the Clinton Campaign and partner at the firm Perkins Coie, lied to conceal the campaign’s funding of the infamous Steele Dossier.

The timing could not be worse for Sussmann.

Yet his former partner Elias may be a source of hope for Sussmann. Elias has previously been sanctioned for his conduct in litigation and recently lost an effort to gerrymander the Maryland voting districts.  While the alleged Elias’ lies would ordinarily seem a professional liability for any attorney, they seem an actual professional attraction for Elias. Elias has been accused of making millions from gerrymandering and challenging election victories by Republicans (while condemning such actions by Republicans as “anti-Democratic”).

The motion to dismiss is now before U.S. District Judge Christopher R. Cooper. The trial is set for for May 13.



186 thoughts on “In Like Flynn: Clinton Lawyer Adopts a Familiar Defense Against Durham Charge”

    1. “whether it would have mattered if Sussmann had told him he was there on behalf of the Clinton Campaign and Baker said it would not?”

      Your paraphrase doesn’t accurately reflect the question or the statement. That is why you are not credible and need to provide quotes along with a link instead of paraphrases.

    2. There is a complex game going on at this trial and Durham has successfully manipulated Sussman to what outside of DC should have been the losing side.

      I have a problem with that game – but the DOJ uses it all the time, and far more egregiously with Trump associates.

      It is increasingly self evident to everyone who is not a left wing nut that the foundation of the FBI investigation rested on HOAXES.

      The FBI either never should have moved forward or should have dropped the investigations like a hot potato very quickly.

      But they did not.

      Why ?

      Durham is arguing that is because they were lied to.

      The alternative is that the FBI itself was politically corrupt.

      In reality – BOTH are likely true.

      I would have prefered that Durham charged Sussman with false reporting. That is more obviously true, and the FBI’s choices or knowledge are not relevant.

      There is plenty of evidence both before and from this trial that the FBI gleefully went after Trump.
      There is also plenty of evidence that regardless of when they found out they were chasing a fraud – they did not care, and that they figured that out fairly quickly.

      Regardless, one of the huge problems Sussman has is that he alone is the match that lit off an investigation based on multiple hoaxes that continued for years.

      The other huge problem Sussman has is that his defense is that “I am a liar, but the FBI knew than and was crooked and politically corrupt”
      Probably true, but the easiest thing for the Jury is to blame Sussman rather than the FBI.

  1. Time for Durham to subpoena Bill Clinton – Right Now.
    He’s the Man behind the Woman in 2016.
    It’s high-time to ruffle some DNC feathers.

    You can file this under FICTION:

  2. Jonathan: If you believe Trump and his supporters inside and outside Fox News the long and tedious Durham investigation is proof positive that the Clinton campaign “directly funded and ordered its lawyers at Perkins Cole to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia”. Many legal experts say Durham’s case against Sussman is pretty thin. The case goes to trial later this year so I would advise to avoid further speculation until a judgment is forthcoming.

    What is not speculation is what just happened to one of the official WH photographers who chronicled the Trump years. Her name is Shealah Craighead. She recently secured a publishing deal, including a six-figure advance, to publish a book of her images of the Trump presidency. When Craighead tried to give Trump a heads up about her book Trump’s aides demanded a share of the profits from her book–I suppose to get him to write a forward. She was told to hold off publishing her book. The next thing Craighead knew Trump announced a multi-million advance to publish his own book of images–including those to be included in Craighead’s book. Trump’s book is retailing for $230 a piece–the first 300,000 have sold with an estimated gross of $20 million. Craighead says her book has been put on hold by her publisher. There is nothing illegal in what Trump has done because the work of WH photographers is considered in the “public domain”–not subject to copyright. In his book Trump doesn’t give Craighead photo credits–except in an acknowledgment to all WH photographers on the last page. It is customary for WH photographers to publish books after an administration leaves office. But this is the first time a former president has preempted this custom. Trump did so because he saw an opportunity to make money at the expense of a hard working WH photographer. In a bit of irony Trump often complained to WH visitors about Craighead’s so-called “lack” photographic skills but was not above using her images in his own book.

    Critics of Trump’s book say it was a “slap in the face” by a socio-path/narcissist who has no empathy for the hard work of others. But that’s Trump in spades. The loyalty of a WH photographer doesn’t count when the flimflam man sees an opportunity to profit. Craighead learned a hard lesson. Never trust anything Trump tells you. Apparently there are a lot of people in this country that have not learned that lesson.

    1. Dennis, you never fail to bite on the phony stories fed to the leftists acolytes.
      The Photographs are public domain. YOU can use those photos and create a book to sell.

      1. Iowan2: You are just like some of the other right-wing “acolytes” in this chatroom. You didn’t bother to read my comment in full where I specifically state: “There is nothing illegal in what Trump has done because the work of WH photographers is considered in the ‘public domain’–not subject to copyright”. The point of my comment was not that Trump did something illegal (although he has done plenty of that) but he suckered Craighead into inaction, hoping maybe Trump would write a forward to her book, and then published his own book and reaped all the profits. Now an empathetic person would let a hardworking photographer make a little money and get some credit for her WH images. That has been the traditional practice of former presidents. But not the Trumpster. He doesn’t have an once of empathy. He is a sociopath and narcissist constantly seeking attention and profit. Next time you comment make sure you have your facts straight. Too much time in the cornfields and not enough time at your computer factchecking. That’s your problem.

  3. Voters are far more intelligent than many politicians give them credit. Voters understand how dysfunctional bureaucracies are, we know the “system” is broken but most rank & file government employees are good people. Most voters don’t blame the poor bureaucrats forced to work in these terrible systems.

    Probably what infuriates voters of both parties is not only is there no accountability for premeditated law breaking by some (not all) government employees but after millions of tax dollars spent on show-trials the result is “business-as-usual”. This show-trial drama actually creates an “incentive” for future wrongdoing. There will no accountability for future wrongdoing either.

    For example: When the United States violated Ronald Reagan’s torture treaty (also codified into federal law and governing wartime authority). The U.S. Department never locked up the DOJ that committed legal malpractice or even indicted them with criminal charges. The DOJ locked up people like John Kiriakou of the CIA and Joseph Nacchio (former CEO of Qwest Communications) – DOJ locked up the most patriotic and most loyal Americans that upheld their Oath of Office loyalty oath – those that refused to participate in torture and those that refused to participate in warrantless domestic spying (felony crimes under federal law). To my knowledge not a single Attorney General has upheld their Oath of Office loyalty oath to right these genuine evils in over 20 years.

    Taxpayers funded a “9/11 Commission” which Congress today in 2022 still hasn’t legislated all of the reforms recommended by the commission. Taxpayers funded various show-trials with largely no accountability. As for the DOJ torture attorneys that violated Reagan’s Treaty and federal criminal law designed to govern wartime authority – most were promoted! One is even a federal appeals court judge standing in judgement of other people. None of the DOJ torture attorneys were legally disbarred, they still practice law or teach law as college professors.

    Before taxpayers fund another show-trial let’s address our own post 9/11 war crimes first! Senator Patrick Leahy once suggested a “Truth Commission” which would have shielded 99% of subordinate government employees and contractors from felony convictions thus avoiding all prison time with few conditions – the whole truth leading to actual reforms (NOT business-as-usual). Exposing those disloyal leaders/agency heads, making 9/11 war crime victims (still being punished today in 2022) whole again and real reforms making our security/intel agencies honor their supreme loyalty oath – the Oath of Office.

    1. Like almost every term used in our legal system “Torture” is meaningless. It means whatever the judicial system wants it to mean at the time. Our News media use of definitions is so corrupt they have two vague definitions for the same term an apply one for democrats and excoriate the Republicans with the other. The use of syllogism from the LOGIC without applying the rules of definition make our laws garbag.

      1. Re: Anonymous

        That’s why Ronald Reagan also included “cruel treatment” as a federal felony crime during wartime and peacetime, in addition to “torture”. It should be noted that we now know that Guantanamo Bay had about a 90% failure rate, most were destroyed but never even accused of any wrongdoing whatsoever. Reagan’s Treaty (also federal crimes) applied to Guantanamo as well.

        The point was that torture-attorneys at the U.S. Department of Justice knew that centuries old torture techniques, adopted from the Spanish Inquisition, had been viewed by the entire world as “torture” for centuries. Those DOJ attorneys, with this knowledge, committed gross malpractice stating that “waterboarding” used during the Spanish Inquisition was NOT torture.

        The Bush DOJ attorneys falsely rationalized that U.S. Special Forces were subjected to these centuries old torture techniques as part of their SEAR training (in case U.S. troops were ever tortured themselves). So the DOJ admits it’s torture training.

        The gargantuan difference is that U.S. troops know their American trainers aren’t actually trying to harm or kill them. Detainees kidnapped from foreign nations, flown overseas and then water boarded by a foreign military are truly terrorized with threat of death. Their wives and kids were never notified of the kidnappings. We now know about 90% of those torture-victims were never charged with any wrongdoing and since released. At the time Bush officials called them the “worst of the worst” knowing it to be untrue when they said it. So dangerous 90% were set free. This absolutely meets Reagan’s definition of “cruel treatment” which is also federal law.

  4. What did Bill Clinton know about this?
    Now that’s a good question,

    If Ginni Thomas whispers sweet nothing to Clarence Thomas come bedtime.
    What the hell was Hillary Clinton whispering to Bill Clinton come bedtime.

    Bet He (Bill) has a lot to say about Hillary.

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