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:

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(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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Exclusive: Spygate Researchers Said Claim Russians Hacked The DNC Could Have Relied On ‘Spoofed’ Data

Exclusive: Spygate Researchers Said Claim Russians Hacked The DNC Could Have Relied On ‘Spoofed’ Data

The Georgia Tech cyber security experts ensnared in the Alfa Bank hoax conducted a retrospective analysis of the Democratic National Committee hack, according to the Department of Defense. While the results of that analysis have yet to be made public, internal documents obtained by The Federalist reveal that Georgia Tech’s computer scientists believed CrowdStrike’s approach to investigating computer intrusions relied on the use of easily “spoofed/impersonated” signals of traffic.

In June 2016, about one month before WikiLeaks released a trove of internal communiques revealing top DNC officials plotted to destroy Bernie Sanders’ presidential ambitions in favor of their preferred candidate, Hillary Clinton, the DNC publicly confirmed that its server had been hacked. In the Washington Post article breaking the story, the DNC maintained that the private security firm it had hired to investigate the hack, CrowdStrike, had concluded two Russian military intelligence groups, branded Cozy Bear and Fancy Bear, bore responsibility for the intrusions.

Given that Democrats and the media would later rely on CrowdStrike’s conclusion that Putin’s agents had hacked the DNC to support the Russia collusion hoax, those seeking to unravel Spygate paid particular attention to CrowdStrike’s initial assessment. The declassification of CrowdStrike President Shawn Henry’s December 2017 testimony before the House Intelligence Committee, that “there was no ‘concrete evidence’ that the emails were stolen electronically,” later raised more “questions about whether Special Counsel Robert Mueller, intelligence officials and Democrats misled the public” about the hack.

In his final report, Mueller concluded “that Russian intelligence ‘appears to have compressed and exfiltrated over 70 gigabytes of data’ and agents ‘appear to have stolen thousands of emails and attachments’ from Democratic Congressional Campaign Committee and DNC servers, respectively.” But CrowdStrike remained the only publicly known source to support Mueller’s conclusion. Given the numerous illegal efforts to frame Donald Trump as colluding with Russia exposed by then, conservatives were unwilling to trust either Mueller or CrowdStrike.

Concerns over CrowdStrike’s analysis reemerged after Special Counsel John Durham indicted former Clinton campaign attorney Michael Sussmann for allegedly lying to FBI General Counsel James Baker. That indictment and other documents filed in the Sussmann criminal case revealed that cyber-security experts assisted tech executive Rodney Joffe in crafting deceptive data and whitepapers to create the false appearance of a secret communication network between Trump and the Russian-based Alfa Bank. Sussmann then fed this “intel” to the CIA and FBI.

After the election, Sussmann also provided the CIA with deceptively cherry-picked data to suggest a connection between Trump or his transition team and Russians, using cyber-tracking of a Russian Yota cell phone. To compile both the Alfa Bank and Yota phone hoaxes, according to the indictment, Joffe exploited proprietary information he had access to because of his positions in various tech companies. More troubling still was the revelation that Joffe used sensitive data from the Executive Office of the President in his attempt to frame Trump.

This backdrop provided powder to the news The Federalist broke that Durham’s team had asked Georgia Tech cybersecurity expert Manos Antonakakis “point blank” whether the Department of Defense’s Defense Advanced Research Projects Agency (DAPRA) “should be instructing you to investigate the origins of a hacker (Guccifer_2.0) that hacked a political entity (DNC).”

Antonakakis, according to documents obtained by The Federalist, told lead prosecutor Andrew DeFilippis — in a seeming confirmation that DARPA had directed him to investigate the DNC hack or hacker — that that was “a question for DARPA’s director.”

Within days, however, DARPA denied any involvement “in efforts to attribute the DNC hack.” Jared Adams, then the spokesmen for the agency, told the Washington Examiner that “Dr. Antonakakis worked on DARPA’s Enhanced Attribution program, which did not involve analysis of the DNC hack.” The Washington Examiner further reported that Adams maintained “DARPA was not involved in efforts to attribute the Guccifer 2.0 persona, nor any involvement in efforts to attribute the origin of leaked emails provided to Wikileaks.”

But then another document dump by Georgia Tech revealed the university’s cybersecurity experts had drafted four “DARPA whitepapers.” Those included one “Whitepaper on DNC attack attribution” and a second identified as the “‘Mueller List’—list of domains and indicator related to APT-28.” (APT-28 is the more formal name for the Russian intelligence group of hackers known colloquially as Fancy Bear; Mueller would later charge 12 Russian intelligence agents with allegedly working as Fancy Bear with crimes related to the DNC hack.)

An email from Georgia’s attorney general’s office further indicated involvement by the tech researchers in Mueller’s investigation. The lawyer handling Durham’s subpoena of Georgia Tech noting that one of the individuals involved had “indicated that there was a ‘fairly large file of Trump related materials’ that had been assembled for production to the office of Special Counsel Robert Muller (sic) or the DOJ.” The state’s lawyer added that they were “unable to locate such a file,” and sought further assistance.  

Following The Federalist’s reporting on this latest inconsistency between DARPA’s story and what the documents obtained through Right To Know requests showed, Republican Sens. Ron Johnson and Charles Grassley sent a letter to Stefanie Tompkins, the director of DARPA, demanding copies of the alleged “whitepapers.”

In their joint letter, the senators stressed that “the DNC hack occurred during the lead up to the 2016 presidential election, which was marked by claims of meddling by foreign actors. Some of those claims have since been confirmed to be disinformation efforts by operatives from the Democratic campaign.” “As details continue to emerge,” the letter continued, “the public is rightly concerned about the extent to which various federal agencies investigated, validated, dispelled, or relied on these claims. Indeed, the credibility of some agencies has been called into question, and the public deserves a full accounting of federal officials’ involvement in these activities.”

When contacted by The Federalist concerning Johnson and Grassley’s letter, DARPA’s new spokeswoman, Tabatha Thompson, noted it had received the letter and “is following proper procedures to respond to the inquiry.” In response to questions concerning the whitepapers that appeared connected to the Mueller investigation and the DNC hack, Thompson told The Federalist that, “consistent with our previous statements, the research neither contributed to the Mueller investigation nor the investigation into the DNC hack or Guccifer 2.0 attribution.”

Thompson, however, then noted that contractors often conduct “retrospective analyses of publicly disclosed, real-world scenarios to verify and validate tools and capabilities in development on the EA program,” and that in the course of such programs, the contractors may “produced reports, sometimes referred to as white papers, explaining the retrospective analyses on those topics, relying on commercially available data to analyze attributions previously disclosed to the public.” “For example,” DARPA’s representative, added, enhanced attribution “performers analyzed indicators from publicly released DoJ indictments, such as the Mueller indictment, as well as public attribution reports from other federal agencies.”

In response to multiple requests from The Federalist for comment, Mark Schamel, the lawyer for Antonakakis, refused to go on the record with an explanation or to state whether the Georgia Tech whitepaper confirmed or contradicted CrowdStrike’s conclusion that Russians had hacked the DNC. He also refused to answer whether the whitepaper had been provided to Mueller’s office.  

Also unknown is whether Joffe provided Antonakakis the data used for the research and the whitepapers related to the DNC hack. That is a concern given Joffe’s role in the Alfa Bank and Yota phone hoaxes and given that other documents from Georgia Tech state that Joffe assisted with two other attribution requests performed by Antonakakis over the summer of 2016.

Other documents recently obtained by The Federalist likewise raise concerns over the validity of CrowdStrike’s analysis of the hack, namely an exchange between Antonakakis and the executive director of the university’s Institute for Information Security and Privacy, Lee Wenke.

In an email thread from May of 2018, in response to Antonakakis’ statement that “you do attribution from studying the mistakes they do during an operation,” Wenke wrote: “Then are you in principle doing the same as crowdstrike, e.g., using ‘signatures’ of coding/texting styles? And didn’t we all agree[] that those can be ‘spoofed/impersonated’?”

The exchange continued with Antonakakis stating that he is “not like” CrowdStrike, and is “not building signatures,” to which Wenke replied: “I was saying that if you are using signatures/signals of traffic and if those can be (easily) spoofed/impersonated, then in principle your approach would suffer the same weakness (spoof-able) as [CrowdStrike.]”

Antonakakis ended the exchange by acknowledging his point, but “strongly” disagreeing on the “value that policy has in computer security.” What remains unclear from this email thread, though, is whether Antonakakis’ retroactive analysis of the DNC hack reached the same conclusion as CrowdStrike, namely that Russians had hacked the servers.

Frankly, given Cozy Bear and Fancy Bear’s propensity to hack government networks, it is extremely likely the Russian intelligence services were behind the DNC hack. Evidence unrelated to Trump or attempts to destroy the former president indicate, for instance, that between 2012 and 2018, Russian intelligence officers “targeted hundreds of energy companies around the world.”

Both U.S. and U.K. national security agencies likewise believe the Russia’s military intelligence agency, GRU, has “engaged in a global campaign to target ‘hundreds’ of predominantly American and European entities, including government and military organizations, energy companies, think tanks and media companies.”

But given what we know now about the Steele dossier and Alfa Bank and Yota cell phone hoaxes, as well as the FISA abuse by the Crossfire Hurricane team, taking the word of the intelligence community no longer suffices. It’s now: Show me the evidence, who gave you the evidence, and that person’s political affiliation.

That is far from the ideal situation for national security, but it is the intelligence agencies and those in the cybersecurity world who own that reality — as well as Hillary Clinton and the media.


Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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Durham unmasks Alliance between Media, Democrat dirt diggers: False Trump Russia Story

Durham unmasks Alliance between Media, Democrat dirt diggers: False Trump Russia Story


Durham unmasks Alliance between Media, Dem dirt diggers: False Trump Russia story

Court filings show plan to introduce evidence that Clinton campaign flooded media with “unverified derogatory information” on Trump.

By John Solomon

Just days after Hillary Clinton emissaries Christopher Steele and Michael Sussmann approached the FBI in September 2016 with dirt that would infuse the Russia collusion probe, the campaign’s opposition research firm sent some of the same information to New York Times journalists.

“Gents good to see you yesterday,” a Fusion GPS executive wrote the reporters. “Sounded like you might be interested in some of the attached russia-related material. these are internal, open source research drafts, as agreed, pls treat this as background/not for attribution. as you’ll see it’s all easily replicated anyway.”

The invitation to further dirty up Donald Trump continued: “Can also send you a [name]/Toronto memo once i dig it out. I’m skipping over [name] and [company name]. believe your guys have done that up … leave it to you to distribute internally, or not, as you see fit. don’t believe sunny isles/hollywood or panama or toronto have been touched by brands xy or z. amazingly, don’t think anyone has done up the trump tower poker ring story either. pretty vivid color there.”

The missive is one of hundreds of emails that Special Counsel John Durham has obtained between Clinton campaign operatives and journalists that spread “unverified derogatory information” about Donald Trump, spawning the false Russia collusion narrative shortly before Election Day 2016. They’ve now been made public in court filings.

Durham recently disclosed several communications with reporters in a filing designed to reject the Clinton campaign’s claim that its Steele dossier and other research should be shielded from public view at an upcoming trial because it was covered by attorney client privilege.

Durham’s argument is straightforward: Attorney-client privilege doesn’t apply to materials the campaign distributed widely to third parties.

But his filing also puts the traditional media on notice that when Sussmann’s trial on a charge of lying to the FBI begins next month, the unholy alliance between traditional media reporters and the Democrat machine will be laid bare for the world to see.

And it is clear prosecutors have a clear theory that much of the information spread and then reported by the news media was glaringly weak if not outright false. Durham’s filings refer to the Clinton opposition research alternately as a “red herring,” “unverified” “too obvious” to be true, or containing a “very weak link.” In some cases, those were words used by the very researchers helping assemble the materials.

Yet the traditional media reported it and re-reported it for nearly two years before Special Counsel Robert Mueller concluded there was no evidence of a Trump-Russia conspiracy to hijack the 2016 election.

“One of the famous fake news outlets likes to say, ‘Democracy dies in darkness.’ They’re exactly right,” former Rep. Devin Nunes, the Republican House Intelligence Committee chairman who helped uravel the Russia collusion narrative, told Just the News. “They’re the ones who have created the darkness, and democracy does die. It just happens to be the fake news media that’s actually creating this.”

Kash Patel, Nunes’ former chief counsel on the committee, said traditional news media outlets are ignoring or downplaying much of the bombshell revelations in Durham’s filings because “the mainstream media, the fake news media, cannot stand how right we were and how wrong they are.”

Whatever the coverage, Durham’s filings make abundantly clear the Clinton campaign used the media to spread uncorroborated Russia allegations to dirty up Trump at the same time its emissaries were trying to get the FBI, the CIA and the State Department to investigate the same dirt.

The Clinton campaign and its opposition research team “triggered a sizeable outflow of unverified derogatory information into the media, the government, and the public,” Durham wrote in one filing.

In another he added: “The documents produced by Fusion GPS to date reflect hundreds of emails in which Fusion GPS employees shared raw, unverified, and uncorroborated information — including their own draft research and work product — with reporters. And they appear to have done so as part of a (largely successful) effort to trigger negative news stories about” Trump.

Durham said the flooding of the news media was so egregious that it obliterated any claim by the Clinton campaign that Fusion’s work was attorney-client privileged work designed to advise on libel issues.

“One would expect contemporaneous emails and documents to reflect that Fusion GPS and/or its clients exercised some degree of caution and care before publicizing unverified or potentially inflammatory materials,” but they did not, Durham noted.

The most recent Durham filing lays out several contacts Fusion GPS and the Clinton team had with news media, including The New York Times, ABC News and Slate magazine.

The first media contact noted by Durham dates to May 2016, well before the Steele dossier was crafted or the FBI contacted.

“On May 14, 2016, a Fusion GPS employee emailed a Slate reporter who would publish an article about the Russian Bank-1 allegations several months later,” the court fling noted. “In the exchange and subsequent emails, the employee shared portions of research that Fusion GPS was conducting regarding a Trump advisor.”

By July, the campaign research team expanded its contacts, including to the Wall Street Journal, to which it “conveyed information Fusion GPS had gathered regarding, among other things, Trump Advisor-1, Russian Bank-1, and a purported board member of Russian Bank-1 who later would appear in the Fusion GPS white paper that the defendant provided to the FBI.”

Some of Durham’s newly released information shows how the Clinton campaign pointed reporters to elected officials who would confirm or react to the Russia information.

For instance, the prosecutor noted that a Fusion GPS executive urged a reporter at the Wall Street Journal to “call [a named U.S. Representative] or [a named U.S. Senator],” stating, “I bet they are concerned about what [Trump Advisor-1] was doing other than giving a speech over 3 days in Moscow.”

Rep. Jim Jordan of Ohio, the ranking Republican on the House Judiciary Committee, told Just the News on Friday that Durham is showing just how closely the media, the Democratic establishment and some rogue elements in U.S intelligence worked together to perpetrate the false Russia story in 2016 — a pattern he said was repeated when the same forces falsely portrayed the Hunter Biden laptop as disinformation in 2020.

“What we all suspected all along is that the Clinton campaign was really pushing this,” he said. “And we didn’t know that they just made it up out of whole cloth. But that looks like exactly what they did.”

_________

RELATED ARTICLES

Durham says Sussmann part of ‘joint venture’ to help Clinton campaign, smear Trump with Russia dirt

Clinton campaign’s 11th hour attorney privilege ploy likely to backfire in Durham case

Blocking evidence: Clinton campaign tries to keep memos from Durham’s upcoming trial

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(TLB) published this article with permission of John Solomon at Just the News.  Click Here to read about the staff at Just the News

Some emphasis and video content added by (TLB) editors

Header featured image (edited) credit: John Durham and Donald Trump Twitter grab

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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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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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