Special counsel John Durham wants a federal court to order Hillary Clinton’s 2016 campaign, the Democratic National Committee, Fusion GPS, and Perkins Coie to hand over unredacted versions of withheld documents for the judge to decide whether their claims of attorney-client privilege hold up under scrutiny.
The prosecutor made the demand in a filing late Wednesday in the case of Democratic cybersecurity lawyer Michael Sussmann, who was indicted last year on charges of concealing his clients, the Clinton campaign and “tech executive” Rodney Joffe, from FBI general counsel James Baker when he pushed since-debunked claims of a secret back channel between the Trump Organization and Russia’s Alfa-Bank. Sussmann has pleaded not guilty.
The DNC, Hillary for America, Fusion GPS, and Perkins Coie “have all withheld and/or redacted documents and communications that the government otherwise might seek to admit at trial based on an apparent theory that political opposition research and/or public relations work conducted by the U.S. Investigative Firm at the behest of those entities falls within the legitimate scope of attorney-client privilege and work-product protections," Durham said in the filing.
The special counsel asked the federal court in Washington, D.C., to “compel” the named parties to produce communications that are “currently being withheld.” Further, Durham wants the judge to conduct an “in camera” review of the records, meaning a private session without the press or the public. The special counsel argued there are "questions concerning the validity, scope, and extent of the privilege assertions.”
British ex-spy Christopher Steele created his now-discredited anti-Trump dossier after being hired by Fusion GPS, which was itself hired by Perkins Coie and Marc Elias, the general counsel for Clinton’s campaign. Sussmann and Elias worked for Perkins Coie at the time.
The Clinton campaign and the DNC were both fined by the Federal Election Commission last month for “misreporting the purpose of certain disbursements” related to how the Clinton campaign and the DNC claimed that payments to Perkins Coie and Fusion GPS were for legal services when Fusion GPS was clearly hired for opposition research.
SUSSMANN DOESN'T WANT STEELE DOSSIER BROUGHT UP IN DURHAM TRIAL
Withholdings have happened “despite the fact that almost all of these materials appear to lack any connection to actual or expected litigation or the provision of legal advice," according to the special counsel. Durham said Fusion GPS has withheld 1,455 documents, but only 18 emails and attachments involve an attorney.
From 2016 through 2021, Durham argued people associated with Fusion GPS, the Clinton campaign, and Perkins Coie intentionally failed to maintain requisite confidentiality over materials from the election, so he believes their attorney-client privilege claims should be waived.
The special counsel said the DNC and the Clinton campaign “have asserted attorney-client privilege and/or work product protections over communications solely between” Joffe and a person from Fusion GPS who has been subpoenaed to testify at trial. Joffe’s lawyer also claimed privilege over those.
Durham revealed he served a grand jury subpoena to Fusion GPS in March 2021, requesting “non-privileged records” involving Sussmann and Perkins Coie as well as correspondence related to Alfa-Bank, and he said he served a July 2021 subpoena to Fusion GPS asking for “non-privileged records” related to Fusion GPS being retained by the DNC and the Clinton campaign.
The special counsel said he served similar grand jury subpoenas to the DNC, the Clinton campaign, Perkins Coie, Joffe, and companies tied to the tech executive. The groups all produced documents and privilege logs, except for Joffe asserting his Fifth Amendment rights, Durham said.
Durham said Joffe tasked his own employees and associates with mining and assembling internet data that would support an “inference” or “narrative” tying former President Donald Trump to Russia. The tech executive's motive was demonstrated in emails that said the goal was to please “VIPs” — apparently referring to Sussmann, Elias, and the Clinton campaign.
The special counsel revealed in February that he has evidence Joffe “exploited” domain name system internet traffic at Trump Tower, Trump’s Central Park West apartment building, and the Executive Office of the President.
Durham said September 2021 subpoenas to Perkins Coie and Fusion GPS compelled them to produce the documents listed on privilege logs and that those records were handed over in redacted form.
Durham asked the judge to review documents he said appear to relate to Fusion GPS’s “provision of opposition research and media strategy-related services” to the Clinton campaign, the DNC, and Perkins Coie.
The Clinton campaign retained Perkins Coie and Elias to provide “legal counseling and representation” of the Clinton campaign, and the DNC hired Perkins for legal advice, according to Durham. The special counsel said the “primary purpose” of Fusion GPS’s work related to the Steele dossier and Alfa-Bank claims “was to assemble and publicize allegations that would aid the campaign’s public relations goals.”
Fusion GPS’s efforts “resulted in numerous media articles and reports” before and after the 2016 election, said Durham, who also pointed to the firm's hiring of Steele to compile his dossier. Durham said Fusion GPS “also drafted one of the white papers” that Sussmann provided to the FBI in September 2016.
The special counsel said that in July 2016, Steele shared information he had gathered with an FBI agent, a DOJ official, and a State Department official. The special counsel said his team interviewed Clinton campaign Chairman John Podesta, who apparently did not know Steele and Fusion GPS had been hired on its behalf.
Durham said Fusion GPS's founder spent July 2016 onward pushing claims to the media and setting up reporter meetings with Steele, while Fusion also aggressively pushed journalists to cover the Alfa-Bank allegations, even though Durham said Joffe, some of his associates, and Fusion GPS itself "had expressed or acknowledged a lack of certainty about the information’s reliability."
The special counsel also pointed out the Fusion GPS co-founders had published a 2019 book as well as Steele’s lengthy testimony before a British court in 2020 involving his work with Fusion GPS.
Steele testified Sussmann provided him with other claims about Alfa-Bank’s purported ties to Russian President Vladimir Putin during a late July 2016 meeting. These allegations made their way into a September 2016 memo that became part of the dossier. The former MI6 agent also pushed Alfa-Bank's collusion claims to the Justice Department and the State Department.
The special counsel also asked the judge to review communications between Fusion GPS and Joffe related to the Alfa-Bank claims. Durham said Sussmann never billed Joffe for his preelection work on the Alfa-Bank claims “but instead billed that work to the Clinton Campaign.” Durham said lawyers for the Clinton campaign and the DNC nevertheless asserted privilege "over all of these communications."
Sussmann lawyer Sean Berkowitz referenced the impending privilege debate during a March 31 hearing, arguing, “It’s wildly untimely from our perspective — it’s something that could’ve been done years ago if, in fact, they were going to do it.”
Durham prosecutor Andrew DeFilippis said, “We’ve been working for some time in good faith with ... the asserted privilege holders.” The prosecution planned to call witnesses from Fusion GPS and Perkins Coie, so “in the context of hashing out the appropriate scope of testimony for those witnesses, it is unavoidable that we have to consider the question of what is validly privileged.”
Berkowitz lamented this was "an ambush.”
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Sussmann’s defense team also seemingly tried preemptively to push back on Durham in a Tuesday evening filing.
“The animating theory of the Special Counsel’s Indictment is that, in meeting with the FBI and Agency-2 [the CIA], Mr. Sussmann sought to conceal that he was secretly working on behalf of the Clinton Campaign and Mr. Joffe,” Sussmann’s lawyers wrote on Tuesday. “Lacking actual evidence of Mr. Sussmann’s guilt, the Special Counsel seeks instead to convict Mr. Sussmann by insinuating to the jury that such evidence must exist — by inviting them to draw the inference that, because Mr. Sussmann’s alleged clients and co-conspirators have chosen to withhold information relating to the very same relationship the Special Counsel alleges they and Mr. Sussmann sought to conceal, that information must be inculpatory.”