The special counsel appointed by President Donald Trump's Justice Department to probe the Russia investigation is moving to indict a prominent lawyer on a charge of making a false statement to the FBI, a source directly familiar with the matter told NBC News.
The source said the case by special counsel John Durham is expected to center around a 2016 meeting between the lawyer, Michael Sussmann, and the then-FBI general counsel, James Baker, at which Sussman told Baker about suspicions relating to alleged secret communications between the Trump campaign and Russia. The suspicions were later determined to be unfounded.
The possible indictment was first reported by the New York Times. A Justice Department spokesman declined to comment.
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President Joe Biden's Justice Department is allowing the indictment to go forward despite a written appeal by Sussman's lawyers to Attorney General Merrick Garland, the source said, adding that the charge, if it is filed, could come as soon as Thursday.
Sussmann's lawyers, Sean Berkowitz and Michael Bosworth of Latham & Watkins, issued a statement in anticipation of the indictment denying any wrongdoing.
"Mr. Sussmann has committed no crime," the statement said. "Any prosecution here would be baseless, unprecedented and an unwarranted deviation from the apolitical and principled way in which the Department of Justice is supposed to do its work. We are confident that if Mr. Sussmann is charged, he will prevail at trial and vindicate his good name."
Durham, a former U.S. Attorney for Connecticut, was appointed to examine how the FBI, the CIA and other agencies investigated Russia's interference in the 2016 election and potential connections between Russia and the Trump campaign. He negotiated a guilty plea from an FBI lawyer who was sentenced to probation after admitting to lying on a surveillance warrant application.
The Sussmann meeting with Baker has been the subject of sworn testimony by both men before the House intelligence committee investigating the Trump-Russia affair. At the time, Sussmann represented the Democratic National Committee and was working on matters related to Russia's 2016 hacking of its servers, according to his 2017 Congressional testimony.
At the Sept. 19, 2016, meeting, Sussmann passed along analysis by cybersecurity researchers who were asserting that obscure internet data raised the possibility of a secret communications channel between computer servers associated with the Trump Organization and Russia's largest commercial financial institution, Alfa Bank, according to the source and to Sussmann's House testimony.
Prosecutors suspect Sussmann was secretly working on behalf of Hillary Clinton's presidential campaign, the source says — something Sussmann denies.
At the time, the Clinton campaign was pushing the Alfa Bank story hard to the news media.
The FBI later ruled out the idea that Alfa Bank was involved in secret Trump-Russia communications, according to a bipartisan Senate report on the Trump-Russia affair.
The source said Baker told investigators that he remembered Sussmann saying that he was not meeting him on behalf of any client. But Sussman told Congress in 2017 he was representing an unnamed cybersecurity expert.
The source said Sussmann's lawyers argued to the Justice Department that regardless of who he was representing, no statement he made to Baker met the test of being "material," meaning that it influenced the FBI's actions. The FBI would have investigated the Alfa Bank allegations either way, the lawyers argued, because the New York Times had been working on a story about them.
Typically, legal experts say, people prosecuted for false statements are witnesses or potential defendants who misled FBI agents investigating crimes, as was the case with Trump's former national security adviser, Michael Flynn, who pleaded guilty to lying to the FBI and then was pardoned.