Fusion GPS Loses Its Fight Over “Privileged” Documents

Fusion GPS Loses Its Fight Over “Privileged” Documents


Fusion GPS Loses Its Fight Over “Privileged” Documents

And – how Joffe’s “privilege” can be overcome

By Techno Fog via The Reactionary

We’ve documented the ongoing battle to obtain Fusion GPS e-mails and documents in the Michael Sussmann case. At issue in the Sussmann case are 38 e-mails and attachments between and among Fusion GPS, Rodney Joffe, and Perkins Coie.

These 38 e-mails and attachments are among approximately 1,500 documents that Fusion GPS withheld from production to the grand jury based on “privilege.”

What Fusion GPS has to produce.

Today, the court in the Sussmann case made an important ruling and rejected, in large measure, Fusion’s assertion of attorney-client or work-product privilege:

Fusion GPS will have to produce these documents to Special Counsel Durham by May 16, 2022. What do these e-mails and documents contain? The court’s order provides guidance, stating they relate to:

Internal Fusion GPS e-mails discussing the Alfa Bank data and e-mails circulating draft versions of the Alfa Bank white papers that were “ultimately provided to the press and the FBI.”

Here are some examples of what these e-mails might include. These are privilege logs in Fusion GPS’s other litigation relating to the Alfa Bank hoax.

The other emails.

This leaves 16 e-mails and documents remaining. For now, Durham will not get them. These are divided into two categories:

  1. Eight of the e-mails involve internal communications among Fusion GPS employees. The court was “unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigaiton.” Coming from the court, that’s a long way of saying that the sworn declarations of Fusion/Clinton lawyers (Levy and Elias) were sufficient to meet the “privilege” burden. This doesn’t mean that Durham can’t overcome this hurdle – just that it hasn’t been overcome yet.
  2. The other eight e-mails and attachments include those among Fusion GPS’s Laura Seago, Sussmann, and Rodney Joffe. The court observed that the e-mails are consistent with Joffe’s assertion of privilege.

With respect to the Joffe e-mails, we note that he is still a subject – perhaps a target – of the Special Counsel’s investigation. Here’s a portion of the transcript from an evidentiary hearing in the Sussmann case that discusses their ongoing investigation into Joffe:

Because the investigation into Joffe is ongoing, it makes sense that the Special Counsel is hesitant to disclose to the court information that could overcome this purported “privilege.” Keep in mind the crime-fraud exception, where communications are not considered privileged where they “are made in furtherance of a crime, fraud, or other misconduct” (citation omitted). In other words, the Special Counsel may still be able to get Joffe’s e-mails – assuming Joffe is charged under 18 USC 1031. He can also get them through the grand jury process, as we saw with Mueller’s investigation of Paul Manafort.1

I’ll also add that the fact that privilege applies to some of these documents strengthens the Special Counsel’s argument that Sussmann was representing a client when he met with then-FBI General Counsel James Baker in September 2016.

As to the e-mails and documents Durham will obtain, he cannot use them during trial. The court considered Durham’s efforts to be too close to the May 16, 2022 trial date to allow these e-mails and documents into trial. I’m not sure that matters. Sussmann is facing a false statement charge, and the court observed these e-mails are not “particularly revelatory.”

Finally, while “Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged,” we can assume based on this ruling that the majority of those documents would not be privileged. Durham will likely get most of them.

For those interested: After I wrote this post, New York Times reporter Eric Lichtblau filed this request for a protective order. Lichtblau will be called as a witness by Sussmann’s attorneys to discuss “communications between Mr. Sussmann and Mr. Lichtblau” – meetings at which Rodney Joffe was present (that confidentiality privilege was waived).

The Special Counsel has refused to limit Lichtblau’s testimony to that narrow topic:

Durham is taking this position because Lichtblau was in contact with Peter Fritsch (and Glenn Simpson) of Fusion GPS leading up to the 2016 election. Fritsch was feeding Lichtblau Fusion “opposition research” (what we might accurately call bullshit), and Lichtblau was at least somewhat receptive, though not salivating like Franklin Foer. These are relevant to the broader “media relations” strategy that Sussmann and Fusion GPS pursued on behalf of the Hillary Clinton campaign.

Here are the e-mails:

**********

(TLB) published this article by Techno Fog via The Reactionary with our appreciation for the coverage

Header featured image (edited) credit: Durham/FOX NEWS screen shot

Emphasis added by (TLB) editors

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The Hunt for Supreme Court Leaker is Fully On



The Hunt for the Suspect in the Supreme Court’s Opinion Leak is Fully On

Becker News

The Federal Bureau of Investigation can no longer be trusted to investigate crimes — even devastating leaks that sabotage the nation’s highest court. The Department of Justice can no longer be trusted to deliver “justice,” except as a mockery to Americans’ constitutional rights. The corporate news media can no longer be trusted to provide credible information in the interest of preserving the country’s most venerated institutions.

Thus, Americans are taking it upon themselves to hunt down any suspects who undertook the extreme, unprecedented act of leaking Supreme Court documents pertaining to some of the most divisive cases and subject the culprits to further scrutiny.

On Monday night, an unprecedented leak of a preliminary majority opinion that would strike down the abortion cases Roe v. Wade and Planned Parenthood v. Casey was aired in the beltway insider publication Politico.

The article was authored by Josh Gerstein and Alexander Ward, who claimed to have “received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”

The document leak was accompanied by the mobilization of protesters around the Supreme Court, whose police officers erected barricades to keep out the fomenting mob. The Democratic National Committee dispatched fundraising emails — as if right on cue. The entire imbroglio smacked of a sophisticated operation to penetrate one of the most secretive bodies in the world and expose its inner workings for crude political fodder.

One of the prime candidates for a leak at the Supreme Court is “the wise Latina” Justice Sonia Sotomayor. Republican strategist Matt Wolking explained why Sotomayor’s office is suspect and one potential linkage.

“A person called Amit Jain clerks for Supreme Court Justice Sonia Sotomayor,” Wolking notes. “As a Yale student, Jain blasted Yale for supporting Brett Kavanaugh’s nomination. Jain was quoted in a 2017 Politico piece by Josh Gerstein. Today, Gerstein published the draft SCOTUS opinion on Roe.”

This is obviously not definitive proof. However, this would not be the first time Sotomayor’s office would be at the center of controversy surrounding an ostensible Supreme Court leak, albeit nothing of the magnitude of a preliminary majority opinion striking down Roe.

“If it is proven that Sotomayor’s office was behind the leak — and that’s still an if — it wouldn’t be the first time this year her office appeared to be behind a political leak,” he added. It involved a kerfuffle over Sotomayor’s alleged demand that all justices wear a mask.

“Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked,” NPR claimed based on an inside source. “Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.”

“They all did,” NPR continued. “Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.”

“On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask,” the report added. “NPR’s report did not say that she did. Then, the chief justice issued a statement saying he ‘did not request Justice Gorsuch or any other justice to wear a mask on the bench.’ The NPR report said the chief justice’s ask to the justices had come ‘in some form.’ NPR stands by its reporting.”

The surreal episode suggests there is a radical mole familiar with Sotomayor on the court who feels compelled to defend the justice and her decisions. It was disturbing foreshadowing for the Supreme Court leak on Monday.

However, there is an alternative explanation being floated that would exonerate all of the clerks, while once again displaying the insecurity of the nation’s data infrastructure: A hack. It should be noted, first of all, that the documents were photoscanned and not in digital ready format.

Whether it is a hack or a leak from a partisan clerk, the American people should be able to rely on its premier law enforcement agencies to vigorously seek out the suspects with the aim to prosecute to the fullest extent of the law. But knowing the political inclinations of the Biden administration, there is no reason to believe  the federal government will seriously hold anyone accountable for this inexcusable breach of the nation’s once-esteemed court.

*********

(TLB) published this article from Becker News as written and compiled by Kyle Becker

Emphasis added by (TLB) editors

Header featured image (edted) credit: Justice Sonia Sotomayor/from orginal Becker News article

••••

••••

Stay tuned to …

••••

The Liberty Beacon Project is now expanding at a near exponential rate, and for this we are grateful and excited! But we must also be practical. For 7 years we have not asked for any donations, and have built this project with our own funds as we grew. We are now experiencing ever increasing growing pains due to the large number of websites and projects we represent. So we have just installed donation buttons on our websites and ask that you consider this when you visit them. Nothing is too small. We thank you for all your support and your considerations … (TLB)

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Comment Policy: As a privately owned web site, we reserve the right to remove comments that contain spam, advertising, vulgarity, threats of violence, racism, or personal/abusive attacks on other users. This also applies to trolling, the use of more than one alias, or just intentional mischief. Enforcement of this policy is at the discretion of this websites administrators. Repeat offenders may be blocked or permanently banned without prior warning.

••••

Disclaimer: TLB websites contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available to our readers under the provisions of “fair use” in an effort to advance a better understanding of political, health, economic and social issues. The material on this site is distributed without profit to those who have expressed a prior interest in receiving it for research and educational purposes. If you wish to use copyrighted material for purposes other than “fair use” you must request permission from the copyright owner.

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The Hunt for Supreme Court Leaker is Fully On

The Hunt for Supreme Court Leaker is Fully On


The Hunt for the Suspect in the Supreme Court’s Opinion Leak is Fully On

Becker News

The Federal Bureau of Investigation can no longer be trusted to investigate crimes — even devastating leaks that sabotage the nation’s highest court. The Department of Justice can no longer be trusted to deliver “justice,” except as a mockery to Americans’ constitutional rights. The corporate news media can no longer be trusted to provide credible information in the interest of preserving the country’s most venerated institutions.

Thus, Americans are taking it upon themselves to hunt down any suspects who undertook the extreme, unprecedented act of leaking Supreme Court documents pertaining to some of the most divisive cases and subject the culprits to further scrutiny.

On Monday night, an unprecedented leak of a preliminary majority opinion that would strike down the abortion cases Roe v. Wade and Planned Parenthood v. Casey was aired in the beltway insider publication Politico.

The article was authored by Josh Gerstein and Alexander Ward, who claimed to have “received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document.”

The document leak was accompanied by the mobilization of protesters around the Supreme Court, whose police officers erected barricades to keep out the fomenting mob. The Democratic National Committee dispatched fundraising emails — as if right on cue. The entire imbroglio smacked of a sophisticated operation to penetrate one of the most secretive bodies in the world and expose its inner workings for crude political fodder.

One of the prime candidates for a leak at the Supreme Court is “the wise Latina” Justice Sonia Sotomayor. Republican strategist Matt Wolking explained why Sotomayor’s office is suspect and one potential linkage.

“A person called Amit Jain clerks for Supreme Court Justice Sonia Sotomayor,” Wolking notes. “As a Yale student, Jain blasted Yale for supporting Brett Kavanaugh’s nomination. Jain was quoted in a 2017 Politico piece by Josh Gerstein. Today, Gerstein published the draft SCOTUS opinion on Roe.”

This is obviously not definitive proof. However, this would not be the first time Sotomayor’s office would be at the center of controversy surrounding an ostensible Supreme Court leak, albeit nothing of the magnitude of a preliminary majority opinion striking down Roe.

“If it is proven that Sotomayor’s office was behind the leak — and that’s still an if — it wouldn’t be the first time this year her office appeared to be behind a political leak,” he added. It involved a kerfuffle over Sotomayor’s alleged demand that all justices wear a mask.

“Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked,” NPR claimed based on an inside source. “Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.”

“They all did,” NPR continued. “Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.”

“On Wednesday, Sotomayor and Gorsuch issued a statement saying that she did not ask him to wear a mask,” the report added. “NPR’s report did not say that she did. Then, the chief justice issued a statement saying he ‘did not request Justice Gorsuch or any other justice to wear a mask on the bench.’ The NPR report said the chief justice’s ask to the justices had come ‘in some form.’ NPR stands by its reporting.”

The surreal episode suggests there is a radical mole familiar with Sotomayor on the court who feels compelled to defend the justice and her decisions. It was disturbing foreshadowing for the Supreme Court leak on Monday.

However, there is an alternative explanation being floated that would exonerate all of the clerks, while once again displaying the insecurity of the nation’s data infrastructure: A hack. It should be noted, first of all, that the documents were photoscanned and not in digital ready format.

Whether it is a hack or a leak from a partisan clerk, the American people should be able to rely on its premier law enforcement agencies to vigorously seek out the suspects with the aim to prosecute to the fullest extent of the law. But knowing the political inclinations of the Biden administration, there is no reason to believe  the federal government will seriously hold anyone accountable for this inexcusable breach of the nation’s once-esteemed court.

*********

(TLB) published this article from Becker News as written and compiled by Kyle Becker

Emphasis added by (TLB) editors

Header featured image (edted) credit: Justice Sonia Sotomayor/from orginal Becker News article

••••

••••

Stay tuned to …

••••

The Liberty Beacon Project is now expanding at a near exponential rate, and for this we are grateful and excited! But we must also be practical. For 7 years we have not asked for any donations, and have built this project with our own funds as we grew. We are now experiencing ever increasing growing pains due to the large number of websites and projects we represent. So we have just installed donation buttons on our websites and ask that you consider this when you visit them. Nothing is too small. We thank you for all your support and your considerations … (TLB)

••••

Comment Policy: As a privately owned web site, we reserve the right to remove comments that contain spam, advertising, vulgarity, threats of violence, racism, or personal/abusive attacks on other users. This also applies to trolling, the use of more than one alias, or just intentional mischief. Enforcement of this policy is at the discretion of this websites administrators. Repeat offenders may be blocked or permanently banned without prior warning.

••••

Disclaimer: TLB websites contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available to our readers under the provisions of “fair use” in an effort to advance a better understanding of political, health, economic and social issues. The material on this site is distributed without profit to those who have expressed a prior interest in receiving it for research and educational purposes. If you wish to use copyrighted material for purposes other than “fair use” you must request permission from the copyright owner.

••••

Disclaimer: The information and opinions shared are for informational purposes only including, but not limited to, text, graphics, images and other material are not intended as medical advice or instruction. Nothing mentioned is intended to be a substitute for professional medical advice, diagnosis or treatment.

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