During a court hearing, special counsel John Durham’s prosecutors repeatedly sidestepped the question of whether the underlying data was fabricated. Clinton campaign attorney Michael Sussmann, who gave the material to the FBI’s top lawyer at a September 2016 meeting, has been charged with lying during that meeting about whether he was there on behalf of a client.
The data, which was compiled by cybersecurity experts, seemed to suggest that there might be a communications backchannel between the Trump Organization and Alfa Bank, the largest private bank in Russia. An FBI investigation ultimately concluded there weren’t any improper cyber links between the companies, according to a Justice Department inspector general report.
Sussmann pleaded not guilty and is fighting the case, which is set to go to trial later this year. He wants Judge Christopher Cooper of the DC District Court to dismiss the single count against him — and a key element of his defense is that the Justice Department historically only brings false-statement cases against FBI tipsters when the underlying material itself was made up.
“This is an unprecedented false-statement prosecution,” Sussmann attorney Michael Bosworth said during a virtual court hearing on Thursday. “Nobody who has ever provided a tip to the government been prosecuted for giving ancillary information, and not for giving a false tip.”
Trump has repeatedly claimed in public statements — and in a sprawling lawsuit he filed last week — that Clinton’s campaign, Sussmann, the Democratic National Committee, former senior FBI officials, and other operatives of concocting bogus information about his ties to Russia in hopes of triggering an FBI probe and stymieing his 2016 presidential campaign.
The Durham investigation into the origins of the Trump-Russia probe has been ongoing since 2018. Former special counsel Robert Mueller netted several convictions of top Trump advisers, but Mueller did not establish that there was a criminal conspiracy between Trump aides and Russia.
The judge asked Durham’s team a few times Thursday if the data Sussmann gave to the FBI was untrue. Prosecutor Andrew DeFilippis dodged the question and didn’t give a direct answer.
“We have FBI witnesses who will testify that their investigation found that it was unsupported,” DeFilippis said. Cooper replied, “That’s different than whether the data was accurate or not.”
Cooper also asked whether the FBI’s subsequent conclusions about the data were relevant to the charge pending against Sussmann, which revolves around the September 2016 meeting and whether Sussmann said he was there on behalf of a client. Prosecutors allege that he was there representing the Clinton campaign, and that his deception undermined the FBI’s work.
For his part, Sussmann maintains that he never had any reason to doubt the accuracy of the data, and that he brought the material to the FBI because he believed there were legitimate national security matters at play. The data scientists who did the underlying research have said they stand by their work and slammed Durham for cherry-picking their emails in court filings.
The data supposedly connecting servers belonging to the Trump Organization and Alfa Bank has never been fully explained. A bipartisan Senate report accepted the FBI’s conclusions but also pointed out that the companies gave contradictory explanations for the suspicious data.
Alfa Bank founder Petr Aven, who is one of the richest oligarchs in Russia, testified as part of Mueller’s investigation that Russian President Vladimir Putin indirectly instructed him to make contact with the Trump transition team after the 2016 election. Aven said he tried but failed to reach Trump aides through a former US diplomat and a think tank CEO.
Aven stepped down from the Alfa Bank board of directors earlier this month, shortly after the European Union sanctioned him and other oligarchs over Russia’s ongoing war in Ukraine.
CNN’s Tierney Sneed contributed to this report.