Hillary Clinton campaign lawyer Michael Sussmann won’t try to prove the explosive claims he passed to the FBI that alleged former President Donald Trump had a secret back channel to a Russian bank, according to a court filing Monday.
Sussman’s defense lawyer “stated that he will not seek to affirmatively prove the existence of a link between Alfa Bank and the Trump campaign,” Washington DC federal Judge Christopher Cooper wrote in a six-page ruling.
The defense move, announced during a pretrial hearing Thursday, came after Special Counsel John Durham said he wouldn’t seek to disprove the data Sussmann gave the FBI if he agreed to “concede or decline to dispute the fact that no secret channel of communications actually existed,” according to court papers.
Based on the defense decision, “the Court will hold the government to its word, and will not allow it to put on extensive evidence about the accuracy of the data Mr. Sussmann provided to the FBI unless Mr. Sussmann does so first,” Cooper wrote.
But the judge said he “will permit the government to put on evidence reflecting the FBI’s ultimate conclusions —- which the Court understands to be that the Alfa Bank allegations were unsubstantiated —- as well as the ‘particular investigative and analytical steps’ the FBI took to reach them.”
“Such evidence is relevant to the government’s theory of materiality: that Mr. Sussmann’s alleged statement that he was not representing a client caused the FBI to handle the subsequent investigation differently than it otherwise would have,” Cooper wrote.
Sussmann is charged with a single count of lying to then-FBI General Counsel James Baker when he turned over three “white papers” and data files related to computer traffic he claimed would connect Trump’s 2016 campaign with Russia, which the US intelligence community has said meddled in the election.
During the Sept. 19, 2016, meeting at FBI headquarters Sussmann, a cybersecurity lawyer, allegedly claimed that he wasn’t acting on behalf of a client and had been approached by “multiple cyber experts” concerning allegations of a “secret Trump Organization server that was in communication with” Alfa Bank.
But Sussmann was secretly working for Clinton’s campaign and billed it for his time spent communicating with tech executive Rodney Joffe — identified as “Tech Executive 1” — who allegedly used his access at multiple interment companies to conduct opposition research and create a “narrative” that tied Trump to Russia, according to Sussmann’s indictment.
Sussmann’s decision to abandon the veracity of that claim significantly narrowed “the field of play” for his upcoming trial, Cooper said Monday.
But if Durham can “separately establish ‘what Mr. Sussmann knew’ about the data’s accuracy,” it “could open the door to further evidence” related to the material he gave the FBI, the judge said.
“If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to ‘his state of mind’…including his motives to conceal the origins of the data,” he wrote.
Cooper also ruled that he would only allow Durham to offer a limited amount of expert testimony from FBI Agent David Martin on “general explanations” about the data at the heart unless Sussmann were to make it an issue.
“In particular, if Sussmann seeks to establish at trial that the data were accurate, and that there was in fact a communications channel between Alfa Bank and the Trump campaign, expert testimony explaining why this could not be the case will become relevant,” he wrote.
Jury selection for Sussmann’s trial is set for May 16. If convicted as charged, he would face a maximum five years in prison.