August 12, 2022

Volume XII, Number 224

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What Sussmann Acquittal Means for False Statement Prosecutions

On May 31, former Hillary Clinton campaign attorney Michael Sussmann was found not guilty in connection with his provision of information to the Federal Bureau of Investigation. Sussman’s acquittal provides insight into the applicability of a favored prosecution tool, 18 U.S.C. § 1001(a)(2) (“Section 1001”), which prohibits “knowingly and willfully . . . mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a government investigation. The jury rejected the prosecution’s effort to apply Section 1001 to a source voluntarily providing a tip to the FBI, even in a politically charged context.

The indictment charged Sussmann with making a false statement during his Sept. 19, 2016, meeting with then-FBI General Counsel James Baker. Sussmann arranged the meeting to share computer data and analysis he received from cyber experts that pointed to a possible link between the Trump Organization and Russia-based Alfa Bank. The government alleged that Sussmann lied to the FBI when he told Baker he was not providing the data on behalf of any client.

At trial, prosecutors introduced billing records showing that Sussmann billed his work on this issue to the Clinton campaign, as well as evidence that he also worked on behalf of a technology executive. By contrast, Baker testified that Sussmann told the FBI he was not representing a client in connection with the tip. Baker also testified that Sussmann warned Baker that a major newspaper was writing an article about the same data. Baker stated that, had he known Sussmann was working on behalf of the Clinton campaign and that Sussmann provided the information to the New York Times, the FBI would have approached Sussmann’s information differently. Ultimately, the FBI investigated Sussmann’s allegations and did not find any relevant connection between the Trump Organization and Alfa Bank.

In response to the prosecution’s case, Sussmann’s defense team questioned Baker’s memory of the Sept. 19 conversation. They highlighted Baker’s prior statement that Sussmann said he was acting on behalf of cybersecurity clients, and they argued the FBI would have investigated the tip regardless of whether Sussmann disclosed his representation, making the statement immaterial.

Like the parties, the media framed this case in starkly opposing tones. One narrative characterized the computer data as political opposition research that Sussmann tried to disguise as an unbiased tip by concealing his representation of the Clinton campaign in order to gain media and government buy-in, with the intended outcome being a so-called “October surprise” that would damage the Trump campaign on the eve of the election. The other view claimed that this prosecution was animated by Trump’s political spin that the FBI’s investigation into his connection with Russia was a “witch hunt.”

This prosecution was the first trial resulting from the investigation of Special Counsel John Durham, whom Trump appointed in October 2020 to investigate the FBI’s Trump-Russia investigation. Notably, the prosecution was premised not on any alleged fault with the conduct of the FBI agents responsible for the Trump-Russia investigation (the impetus for Durham’s appointment), but rather on alleged misconduct by a source in that investigation. This use of Section 1001 stands in stark contrast with the DOJ’s recent changes to the corporate cooperation policy. At the same time that the DOJ is encouraging full cooperation with investigators through that new policy, it prosecuted a voluntary source for doing precisely what the DOJ says it is trying to encourage, taking issue with how and why he cooperated. Sussman’s swift acquittal can be interpreted as a rebuke of DOJ’s mixed signaling. As the first case to be brought to trial in Durham’s long-running investigation, the jury’s verdict is also likely to generate debate about its value, longevity, and ultimate future.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 152
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About this Author

Kyle R. Freeny Shareholder Anti-money laundering issues Bank Secrecy Act Anti-corruption, Foreign Corrupt Practices Act, Asset forfeiture, Foreign Agents Registration Act FARA, Government investigations,Compliance counseling
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Kyle R. Freeny, a skilled trial attorney and former federal prosecutor for the Special Counsel’s Office and the Department of Justice (DOJ), Criminal Division’s Money Laundering and Asset Recovery Section (MLARS), focuses her practice on white collar criminal defense, government and internal investigations, and anti-money laundering (AML) and international corruption matters.

Kyle was one of 19 prosecutors selected by Robert S. Mueller III to conduct the high-profile investigation into alleged Russian election interference, coordination between Russian officials and the Trump...

202-331-3118
Linda Ricci attorney criminal defense Greenberg Traurig Boston
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Linda M. Ricci focuses her practice on white collar criminal defense, including matters related to corporate compliance and internal investigations, government investigations, money laundering violations, criminal tax offenses, forfeiture, wire fraud, securities fraud, theft of public funds, obstruction of justice, insider trading, and health care fraud.

Linda draws from more than 15 years of experience working for the U.S. Attorney’s Office for the District of Massachusetts, where she served as Chief of the Narcotics and Money Laundering Unit...

617-310-5278
Adam S. Hoffinger Shareholder Washington D.C. Lawyer with Greenberg Traurig, LLP
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Adam S. Hoffinger, Co-Chair of the White Collar Defense & Special Investigations Practice, focuses his practice on complex civil and white-collar criminal matters, including health care, securities, the Foreign Corrupt Practices Act (FCPA), False Claims Act (“qui tam”), export sanctions, criminal tax, money laundering, antitrust, and bankruptcy. He counsels corporations and individuals in compliance matters, government investigations, and congressional and regulatory matters.

Adam also represents corporations and individuals in high-stakes...

202-331-3173
 Brittany M. Fisher Boston Commercial Litigation Lawyer Greenberg Traurig
Associate

Brittany M. Fisher is a member of the Litigation Practice in Greenberg Traurig’s Boston office. Her practice includes commercial litigation, white collar defense, and eDiscovery matters. Prior to joining the firm, Brittany served as an Assistant U.S. Attorney in the Eastern District of Virginia, where she presented evidence in jury trials and investigated mail fraud, wire fraud, bank fraud, and aggravated identity theft, among other crimes. She also worked as a litigation associate in the Washington, D.C. office of a large, international law firm.

617-310-5287
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