Mueller found that the Trump campaign shared polling data with a Russia intelligence officer, met with Russians to obtain dirt on Clinton, and coordinated messaging around the disclosure of stolen email messages. That this case and a prior case against an FBI lawyer for altering an email are the only charges Durham has filed suggests that this is the closest thing he has found to a crime in his search. It was filed on the last day of the grand jury’s term before the five-year statute of limitations was set to expire on Sept. So why would Durham bother to file charges in a case so rife with issues? The date of the indictment carries one clue. While materiality generally has a fairly low bar, the different standard that Durham - who Barr appointed - is holding Sussmann now suggests that he is being treated unfairly. Attorney’s Office in the District of Columbia under former Attorney General William Barr filed a motion to dismiss the indictment on the grounds that Flynn’s statement was not material. Flynn was charged by special counsel Robert Mueller with making false statements when he lied to the FBI about his conversations with the Russian ambassador in late 2016. For this reason, his allegedly false statement is, at worst, the equivalent of the ten-minute mile, not material to the matter at issue.Ĭlaiming materiality here is particularly galling in light of DOJ’s treatment of former national security advisor Michael Flynn. If the FBI was going to treat information from Clinton’s camp with skepticism, Sussmann had provided all of the information necessary for the FBI to form that suspicion. So even if Sussmann misrepresented what motivated him to bring the information to the FBI that day, Baker knew that Sussmann was aligned with Clinton. He said it wouldn’t, a devastating admission for Durham’s case. In his 2018 congressional testimony, Baker was asked whether it would have mattered if Sussmann had told him he was there on behalf of the Clinton Campaign. But this allegation is refuted by its own witness. Here, the indictment alleges that Sussmann’s statement that he was not acting on behalf of any client was material because if the FBI had known that Sussmann was providing the information on behalf of the Clinton campaign, it would have treated the information differently. If Sussmann had also bragged to Baker, say, that he runs a six-minute mile, but in fact, he runs a ten-minute mile, that statement might be false, but it would not be material to the matter at issue.

The materiality element requires a showing that the statement could influence a matter under consideration not every false statement is a crime, only those that matter.

Although making false statements to an FBI agent is a serious crime, the government must be able to prove each and every element of the offense.Įven assuming the prosecution can prove that the statement was false, that Sussmann knowingly lied and that the crime is in the FBI’s jurisdiction, it still cannot establish materiality.

Durham standard notes