Judge allows Durham to move forward with Sussmann prosecution

A federal judge on Wednesday ruled that Special Counsel John Durham can proceed with his office’s prosecution against a lawyer with ties to Democrats for making a false statement to the FBI in 2016.

U.S. District Judge Christopher Cooper denied a motion from Michael Sussmann to dismiss the single charge against him, which stems from a 2016 meeting with the FBI’s top lawyer to present evidence supposedly linking then-presidential candidate Donald Trump to a Russian bank.

Cooper, who was appointed by former President Obama, said in his decision Wednesday that the legal challenges raised by Sussmann’s lawyers against the Durham indictment may have some merit but cannot be fully ruled on in the pretrial stage.

“The battle lines thus are drawn, but the Court cannot resolve this standoff prior to trial,” the judge wrote in a six-page decision.

Trial is set to begin next month over Durham’s allegation that Sussmann lied during the 2016 meeting by telling the FBI’s general counsel that he was not acting on behalf of any clients in presenting the evidence when in fact he was there in his capacity as an attorney for Rodney Joffe, a cybersecurity executive.

Sussmann has pleaded not guilty and his legal team has denied that he misrepresented what capacity he was acting in when he met with the bureau official.

His lawyers have argued that Durham’s case is extraordinarily thin because it is based on what was said in a relatively informal one-on-one meeting and that there’s little evidence the statement in question materially affected the FBI’s decision to open an investigation into the 2016 Trump campaign.

Cooper wrote on Wednesday that Sussmann may be right as a matter of law regarding the materiality arguments, but “the Court is unable to make that determination as to this alleged statement before hearing the government’s evidence. Any such decision must therefore wait until trial.”

Prosecutors with Durham’s office may have bolstered their case earlier this month when they revealed in a court filing that the day before the 2016 meeting, Sussmann had texted James Baker, the FBI general counsel at the time, saying, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau.”

An attorney for Sussmann did not immediately respond when asked for comment.

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