Sussmann’s legal team filed a reply to Durham’s opposition to Sussmann’s motion to dismiss on the basis of lack of materiality. Sussmann sticks to the premise underlying their motion. They contend that Sussmann was the deliverer of a tip to the FBI, which triggered a binary
decision to be made by the FBI: 1) open up an investigation of the tip or 2) decide to tip isn’t strong enough to justify an investigation, so do nothing. Under this logic, Sussmann argues, only a false statement in the tip itself can be material. Here’s the reply brief:
Sussman’s brief talks around, without addressing head-on, the second part of the materiality issue, in addition to a decision as to whether to investigate: Does the false statement affect a governmental function? Notably, at no time in either of Sussmann’s briefs does Sussmann
bother to put Sussmann’s “tip” and associated false statement into the context of the broad investigation that was going on at the time: Crossfire Hurricane. Indeed, at the time of Sussmann’s meeting with FBI’s Baker, the FBI was engaged in trying to piece together evidence to
support a FISA warrant. I’m sure the FISA Court would want to know if there was evidence the underlying investigation was essentially an operation of the Clinton Campaign, Sussmann’s client. The reality was that lying to conceal his client did in fact affect in a major way a
government function- the obligation of a law enforcement agency to perform due diligence before bring evidence to a court in support of probable cause. It’s not something the FBI could ignore and conceal. Which makes Sussmann’s lie to conceal the role of both clients material.
To me that’s so apparent that I’m puzzled by why Durham even decided not to go in that direction. Neither in the indictment nor in his brief in opposition to the motion to dismiss did Durham attempt to put the “tip” in the context of the broader CH investigation. Maybe the
lawyers here could solve this mystery for me. Why did Durham allow Sussmann to take “the decision” he argues the FBI needed to make, out of the context of the actual investigation going on at the time- not to mention that at roughly the same time, the FBI was getting a CIA
referral to check out whether Hillary was behind the entire narrative? Everyone weigh in.
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