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The acquittal of Clinton lawyer Michael Sussmann by a Washington, D.C., jury comes as no surprise. In a false-statements case, the government has to prove that the statement in question was both false and material. Prosecutors had problems on both scores, especially the latter.
On falsity, the government must establish beyond a reasonable doubt that an untrue statement was made. Here, although prosecutors had a text message – a statement, directly from Sussmann, in which he falsely claimed he was not representing any client in purveying to the FBI derogatory information about Donald Trump. But that is not how the case was indicted.
Special counsel John Durham did not have the text message when the charge was filed in September 2021, flush up against the statute of limitations. Consequently, in March 2022, when he obtained a copy of the text from James Baker (the FBI’s former general counsel who received the text from Sussmann), Durham could not go back to the grand jury to add a new charge or substantially change the indictment.
That meant the jury could not rely on the text