Attorneys for Clinton campaign lawyer Michael Sussmann filed a motion Thursday to dismiss the case against their client in special counsel John Durham's investigation because it "fail[s] to state an offense."
Sussmann was charged in September with lying to then-FBI general counsel James Baker during special counsel Robert Mueller's investigation into alleged Russian ties to the Trump campaign.
Durham's indictment said Sussmann falsely stated to the general counsel that he was not bringing alleged allegations of a secret channel of communications between the Trump Organization and a Russian bank on behalf of any client.
This false representation led the general counsel to believe Sussmann was providing information as a good citizen rather than a paid advocate or political operative.
"This is a case of extraordinary prosecutorial overreach," Sussmann’s lawyers wrote the court Thursday. "It has long been a crime to make a false statement to the government. But the law criminalizes only false statements that are material — false statements that matter because they can actually affect a specific decision of the government."
The attorneys wrote that "false statements about ancillary matters" are immaterial.
"Accordingly, where individuals have been prosecuted for providing tips to government investigators, they have historically been charged with making a false statement only where the tip itself was alleged to be false, because that is the only statement that could affect the specific decision to commence an investigation," the lawyers wrote.
"Indeed, the defense is aware of no case in which an individual has provided a tip to the government and has been charged with making any false statement other than providing a false tip. But that is exactly what has happened here."
Later in the filing, the lawyers said: "The Indictment against Mr. Sussmann plainly fails to allege a false statement that meets this legal standard for materiality."
The lawyers said that Sussmann "voluntarily" met with the FBI to "pass along information that raised national security concerns."
"He met with the FBI, in other words, to provide a tip," the lawyers wrote. "There is no allegation in the indictment that the tip he provided was false. And there is no allegation that he believed the tip he provided was false.
"Rather, Mr. Sussmann has been charged with making a false statement about an entirely ancillary matter — about who his client may have been when he met with the FBI — which is a fact that even the Special Counsel’s own Indictment fails to allege had any effect on the FBI’s decision to open an investigation.
"Mr. Sussmann did not make any false statement to the FBI."
A filing on Friday alleged that Sussmann shared data purported to show rare Russian-made phones being used near the Trump White House as part of an alleged scheme to tie former President Donald Trump to Russia.
The filing accused an unnamed "tech executive" of exploiting his access to nonpublic internet information and instructing "researchers to mine internet data to establish 'an inference' and 'narrative' tying then-candidate Trump to Russia" in an effort to "please certain 'VIPs,'" including people in the Clinton campaign.