This Week’s Spygate Trial Is Bad News For Hillary Clinton

This Week’s Spygate Trial Is Bad News For Hillary Clinton

Subpoenaed Fusion GPS employee Laura Seago is likely to stay mum during questioning at the criminal trial of Michael Sussmann that starts this week. Her silence will be yet further evidence that the Hillary Clinton campaign financed and seeded the Russia collusion hoax to both the press and U.S. intelligence agencies.

Jury selection is scheduled to begin this morning in a D.C. federal court in the criminal case against former Clinton campaign attorney Michael Sussmann. While Sussmann faces a single charge of making a false statement to former FBI General Counsel James Baker, proof of that federal crime requires prosecutors to show Sussmann lied when he shared Alfa Bank data and whitepapers with Baker, telling the FBI lawyer that he was not acting on behalf of a client.

To prove that lie, Durham’s team, led by long-time prosecutor Andrew DeFilippis, will present evidence to the jury that Sussmann, in fact, was acting on behalf of two clients—the Clinton campaign and tech executive Rodney Joffe. The special counsel has already previewed much of the evidence it intends to present over the course of the expected two-week trial.

Prosecutors will first seek to establish that the Alfa-Bank hoax—a conspiracy theory that claimed Donald Trump had established a secret communications channel with the Russia-based Alfa Bank—originated with Sussmann’s client, Joffe, but was then shared with the Clinton campaign through its Perkins and Coie attorneys. The testimony of Georgia Tech researcher Dave Dagon, whom the special counsel gave immunity to last summer, will be key in this regard.

In the months leading up to the 2016 presidential election, Dagon worked closely with Joffe and the originator of the Alfa-Bank data, April Lorenzen, reviewing the data and a whitepaper supposedly showing the Russia-Trump connection. According to Durham’s indictment, Dagon also collaborated with Joffe and Lorenzen to craft another conspiracy theory related to the Russian-made Yota cell phones. In February 2017, Sussmann provided the CIA data related to the Yota cell phones, claiming that the Russian phones were typically used by top Russian officials and that the data showed the cellphones being in multiple locations near Trump, including in the executive office building of the president.

Dagon’s role, however, extended further, with him serving as the go-to expert to push the Alfa Bank story in the media. Emails reveal that the private investigative firm Fusion GPS, which Perkins and Coie hired on behalf of the Clinton campaign, pushed Dagon on reporters skeptical of the Alfa Bank story. Dagon’s testimony concerning his assistance to Fusion GPS in these efforts connects the Alfa-Bank hoax to the Clinton campaign because it was Perkins and Coie who hired Fusion GPS and not Joffe.

While Dagon holds some insight on Fusion GPS’s role in feeding the Alfa-Bank hoax to the media, prosecutors have also subpoenaed Fusion GPS’s “tech maven” Seago to testify. In response, Seago’s attorney, Holly Pierson, informed the government that Seago would invoke her Fifth Amendment privilege against self-incrimination absent a court order of immunity compelling her to testify at trial. Last month, on a motion by the special counsel, presiding judge Christopher Cooper entered an order immunizing Seago and compelling her to testify.

The court’s order, however, addressed solely Seago’s right not to incriminate herself, and did not address the question of attorney-client privilege. Another ruling last week by the D.C. federal judge addressed Joffe and the Clinton campaign’s claims of attorney-client privilege.

In that order, the court held that internal Fusion GPS emails related to “ordinary media-relations work” undertaken on behalf of the Clinton campaign were not protected by attorney-client privilege. Other emails, though, including eight emails with their attachments exchanged between Sussmann, Joffe, and Fusion GPS’s Seago, were protected by attorney-client privilege according to the court.

While the court’s order last week addressed only the few dozen emails at issue, the court noted it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.” Consequently, if prosecutors seek to inquire of Seago about communications she had with Joffe about the Alfa-Bank data and whitepapers, Seago is likely to respond that she cannot answer the questions based on attorney-client privilege.

Such a rejoinder, however, during the highly publicized Sussmann trial will force focus on the basis of that claim. And the premise underlying the court’s ruling that communications between Seago, Joffe, and Sussmann were protected by attorney-client privilege was that Joffe shared a “common interest” with the Clinton campaign.

Testimony by Seago that Fusion GPS worked with Joffe to push the Alfa-Bank conspiracy theory would further the special counsel’s goal of establishing that Sussmann represented Joffe and the Clinton campaign when he met with Baker; but her hiding behind attorney-client privilege would as well.

In fact, according to court filings the special counsel issued trial subpoenas to both the Clinton campaign and the Democratic National Committee “requesting the testimony of witnesses regarding the assertion of attorney-client privilege in front of the jury,” illustrating that Durham’s team sees value in the jury hearing from witnesses that the Clinton campaign sees itself as the client related to communications relevant to the Alfa Bank data.

Likewise, if Seago refuses to answer questions regarding conversations she had with Joffe and others regarding the Alfa Bank data, prosecutors can still win from that loss, with jurors learning from the assertion of privilege that the Alfa Bank theory arose from communications with Joffe, on behalf of the Clinton campaign.

The real loser, though, will be Hillary Clinton, who risks the spectacle of a court ruling during public proceedings that Seago’s communications with Joffe were protected by attorney-client privilege given Fusion GPS’s role of assisting the Clinton campaign. And that is but a sliver of the evidence likely to come out during Sussmann’s trial connecting Clinton to Spygate.


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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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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Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From The Grand Jury

Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign’s common interest, a federal judge presiding over the criminal case against Michael Sussmann ruled yesterday. Prosecutors will now be greatly limited in the material they may elicit from one of the two witnesses granted immunity in exchange for their testimony against Sussmann.

Sussmann, whose trial in a D.C. federal court on a false statement charge is set to begin on Monday, scored a victory Thursday when presiding judge Christopher Cooper rejected Special Counsel John Durham’s attempts to present the jury copies of emails previously withheld by Joffe, the Clinton campaign, and the Democratic National Committee as privileged. The ruling came in response to Durham’s motion to compel Fusion GPS to provide the court, for in camera review, 38 emails the investigative research firm withheld from the grand jury based on the Clinton campaign’s claim of attorney-client privilege and work-product privilege. The latter protects notes, memoranda, and other communications capturing the mental impressions of an attorney, or those helping an attorney prepare for litigation.

Of the 38 emails, the court held that the Clinton campaign “had no valid basis to withhold 22 of” them. Those emails, the court concluded, did not concern legal advice but involved Fusion GPS employees’ interactions “with the press as part of an affirmative media relations effort by the Clinton Campaign.” “That effort,” the court noted, “included pitching certain stories, providing information on background, and answering reporters’ questions.”

Among the emails related to the “ordinary media-relations work” undertaken on behalf of the Clinton campaign were “internal Fusion GPS discussions about the underlying data and emails circulating draft versions of one of the background white papers that was ultimately provided to the press and the FBI.” Because those emails were not written in anticipation of litigation, but instead related “solely to disseminating the information they and others had gathered,” the court held the emails were not protected by either attorney-client privilege or work-product privilege.

Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel’s office waited too long to file its motion to compel. “As a matter of principle,” the court explained, it would not “put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date.” Accordingly, the court held, “the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege.”

In reaching this conclusion, Judge Cooper noted that the emails did not appear “particularly revelatory,” suggesting there will be little harm to the special counsel’s case against Sussmann from the court’s ruling that the emails will be inadmissible at trial. And beyond the Sussmann case, the court’s ruling inures to the special counsel’s benefit because it establishes a precedent for Durham’s team to seek access to other communications withheld based on the Clinton campaign’s claims of attorney-client privilege. In total, there were nearly 1,500 other documents Fusion GPS withheld as privileged that the special counsel’s office may move to compel the production of as part of future grand jury proceedings or trials.

While that aspect of yesterday’s ruling proves positive for the broader special counsel’s investigation, the court’s conclusion that 16 of the 38 other emails remain privileged creates larger problems for Durham’s team. Eight of those emails also involved internal communications among Fusion GPS employees, the court noted, but because 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 litigation,” the court deferred to claims by Fusion GPS’s attorney Joshua Levy and Clinton campaign attorney Marc Elias that the emails related to legal advice.

Given that Elias maintained all the emails were protected by attorney-client privilege, the court’s unquestioningly accepting his word seems strange. And if a court applies the same standard to assess whether the remaining approximately 1,500 emails are privileged, the special counsel’s office may face challenges obtaining much that matters.

But it was the court’s ruling concerning the final eight emails that has the most immediate effect on the special counsel’s office, namely its prosecution of Sussmann for allegedly lying to former FBI General Counsel James Baker. The last eight emails, with attachments, consisted of two email chains initiated by Joffe to both Sussman and Fusion GPS employee Laura Seago. In opposing disclosure of the email threads, Joffe asserted that “the purpose of the [] communications at issue was to obtain [Fusion’s] assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe] competent, informed legal advice.”

The court held that Joffe’s communications to Sussmann were protected by attorney-client privilege even though the emails included a non-lawyer, Seago, because attorney-client privilege extends to communications by third parties that an attorney hires to facilitate “the effective consultation between the client and the lawyer.” In reaching this conclusion, the court reasoned that Seago’s “involvement related to the technical analysis of the data, which would naturally inform Mr. Sussmann’s advice to his client about the data.”

The court, however, ignored the fact that Fusion GPS, for whom Seago worked, was hired by Perkins Coie to assist the Clinton campaign and the DNC, not Joffe. And Joffe did not pay for Fusion GPS’s services, nor did Perkins Coie charge Joffe. Further, as the special counsel noted in its briefing of the issue, “Perkins Coie also had no agreement, contract, or other arrangement reflecting that Fusion GPS was providing services specifically to aid Perkins Coie’s legal representation of [Joffe].”

Nonetheless, the court held the email threads between Joffe, Sussmann, and Seago were protected by attorney-client privilege based on case law holding communications that further “a common interest” are protected. What the court didn’t say, though, but what must be true under privilege law and “the common interest rule” is that the court believed the communications furthered a common goal of Joffe and the Clinton campaign.

“The joint defense privilege,” or “the common interest rule,” is “an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” The common interest rule “protects communications between the parties where they ‘are part of an on-going and joint effort to set up a common defense strategy’ in connection with actual or prospective litigation.” That rule applies to communications subject to the attorney-client privilege, including communications with technical experts retained to assist in the legal defense.

In this case, as prosecutors stressed in their briefing, there was no “formal or informal legal relationship” between Joffe and the DNC and the Clinton campaign. Case law holds, however, that the “parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal.” But “without a written agreement, the party’s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.”

Yet, even without a written agreement, the court found a “common interest” existed to protect Joffe’s communications with Fusion GPS’s Seago, who was hired by Elias to provide legal support to the Clinton campaign. And what was that “common interest?”

According to Joffe, he hired “Sussmann to assist him in a specific legal matter – namely, to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and/or threats of violence and/or harassment.”

So, in concluding a “common interest” existed between Joffe and the Clinton campaign, the court implicitly also found “the parties have clearly and specifically agreed in some manner to pool information for a common goal,” here the goal of feeding the press and the government the Alfa Bank hoax.

The end results then are that the special counsel’s office cannot compel Fusion GPS to turn over the eight emails between Joffe, Sussmann, and Seago. But yesterday’s holding has broader consequences for the trial because, in closing its 11-page opinion, the court noted that it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.”

That means if prosecutors seek to elicit testimony from Seago, or any other employee of Fusion GPS for that matter, on various communications with Joffe, the court could rule the questions out of bounds based on attorney-client privilege. Given that the special counsel was forced to provide Seago with immunity to obtain her testimony at Sussmann’s trial, the court’s ruling yesterday represents a setback to Durham’s case.

Durham does have a few options, including asking the appellate court to resolve the issue of privilege before the trial starts. Prosecutors may instead decide to push forward and play any claim of privilege by Seago on the stand to their advantage, using it as further evidence that Sussmann was representing Joffe and the Clinton campaign when he presented Baker with the Alfa Bank material. They may also point to the “common interest” underlying the privilege analysis as proof that yes, there was a joint venture between the Clinton campaign, Joffe, and others, sufficient to overcome the defendant’s hearsay objections to other evidence.

Whether yesterday’s ruling represents an overall loss to Sussmann or the special counsel is yet to be seen, but what is clear is that it is another damning indictment of Hillary Clinton.


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 Prosecution and Sussmann Defense Outline Trial Witnesses

With mostly wins and a few losses in the pre-trial evidentiary hearings for Special Counsel John Durham, the case against Clinton lawyer Michael Sussmann is scheduled for trial next week.  Now the witness lists are coming forth.

WASHINGTON – […] Robby Mook, who managed Hillary Clinton’s 2016 campaign, Clinton campaign attorney Marc Elias and FBI counterintelligence leader Bill Priestap and former top FBI lawyer James Baker are among those called as government witnesses, said prosecutor Andrew DeFilipiis. (link)

Additionally, Laura Seago, a top tech official at research firm Fusion GPS (she has immunity in exchange for testimony); Deborah Fine, a Clinton campaign lawyer; and a CIA official identified as Kevin B are also on the prosecution list.

[…] Defense attorneys unveiled their own high-powered witness list. It includes Justice Department Inspector General Michael Horowitz, former acting Assistant Attorney General Mary McCord and Pulitzer Prize-winning New York Times reporter Eric Lichtblau. (read more)

Depending on preset Perkins Coie leverage and risk exposure, other officials from deep inside the DOJ/FBI small group operation may also be forced to stand as defense witnesses by Sussmann’s team.  The lawfare combat teams look interesting.

The prosecution calling Marc Elias as a witness looks like a great opportunity for: (1) evidence against him for later use; and/or (2) a perjury trap.

The defense planning to call Inspector General Michael Horowitz puts the office of the IG into a suspicious position.  Horowitz is a baddie.

Mary McCord is a conniving manipulator for the worst elements of the deep state, so it makes sense she would give testimony to defend Sussmann.  McCord was a central figure in how the DOJ National Security Division sought to frame the appearance of the Trump-Russia collusion nonsense, and it was Mary McCord who later coordinated the National Security Council leaks between Alexander Vindman and anonymous CIA whistleblower, Eric Ciaramella.

Before becoming the Intelligence Community Inspector General, Michael Atkinson was Mary McCord’s chief legal advisor at the DOJ-NSD for the fraudulent submission of the Carter Page FISA application.

In his ICIG position, Atkinson changed the rules for McCord to allow an anonymous whistleblower complaint… at the time Mary McCord was working as legal research operative for the impeachment team in the House.

The Sussmann defense group has enough dirt on Mary McCord and Michael Horowitz to pressure both of them into favorable testimony.  We will likely see other corrupt DOJ and FBI officials also pushed to defend Clinton’s legal crew.

On the prosecution side, Laura Seago (with immunity) has details of the motives inside Fusion GPS by owner/operators Glenn Simpson and Peter Fritsch.  Her testimony should be interesting and will likely overlap into other prosecutions if there are any.

Bill Priestap was Peter Strzok’s boss and James Baker was FBI legal counsel.  If there was anyone who seemed less willing (slightly) to frame Trump you could make an argument that Priestap and Baker were the least corrupt on the scale of internal corruption.  From the perspective of criminal conduct they would be the two FBI insiders less willing to take a fall.

Keep in mind the media has a strong vested interest in the Sussmann prosecution.  If Sussmann is found guilty it makes the media culpability look even worse.  The media was pushing the same false information to the public that Michael Sussmann was pushing into the FBI.

As previously stated, don’t look for Durham to go inside government with his investigation; he appears focused exclusively on the outside players from the Clinton team.

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4 Takeaways From Spygate Colluders’ Mad Rush To Hide Their Tracks In Court

4 Takeaways From Spygate Colluders’ Mad Rush To Hide Their Tracks In Court

On April 19, a bunch of panicked participants in the Spygate scandal rushed the courthouse to intervene in the special counsel’s criminal case against former Hillary Clinton campaign attorney Michael Sussmann. They hope to prevent prosecutors from accessing a few dozen documents that might further reveal their role in peddling the Alfa Bank hoax.

The motions to intervene came just one day after Sussmann also sought to keep the documents away from prosecutors. The special counsel has requested the trial court review the documents in camera to assess whether they are in fact protected by attorney-client privilege.

Here are the top takeaways from these filings.

1. Sussmann Seeks to Keep the Documents Secret Based on Procedure

Two weeks ago, Special Counsel John Durham filed a motion to compel third parties to produce 38 documents withheld from prosecutors in response to grand jury subpoenas based on claims of attorney-client privilege. In his motion, Durham argued that the communications between tech executive Rodney Joffe and employees of the investigative firm Fusion GPS were not privileged, and that documents the Clinton campaign refused to turn over were not protected by attorney-client privilege.

Sussmann faces trial next month on the charge that he lied to then-FBI General Counsel James Baker when he provided Baker “intel” supposedly showing that Donald Trump had established a back-door communication channel with the Russia-based Alfa Bank. Sussmann responded to Durham’s motion on Monday. In his response, Sussmann attacked the special counsel’s motion mainly on procedural grounds, claiming Durham “moved at the wrong time, in the wrong forum, using the wrong process, and seeking the wrong documents.”

The special counsel waited too long to litigate the privilege, Sussmann first argued, claiming that prosecutors knew, in some cases, for as much as one year that Clinton and Joffe were asserting attorney-client privilege. Now, with trial just weeks away, it is too late to allow the special counsel to obtain access to these documents.

Further, because the documents at issue were sought pursuant to grand jury subpoenas, Sussmann argues the special counsel was required to seek to enforce the subpoenas with separate proceedings before the chief judge of the district, not as part of its criminal case against him. According to Sussmann, the special counsel also improperly used the grand jury subpoena in the first instance to obtain what was clearly intended to be trial evidence. Lastly, Sussmann claims the documents are irrelevant to the limited criminal charge against him.

The special counsel has until Monday, April 25, 2022, to respond to these arguments. In the meantime, it will also need to respond to the flurry of third-party motions filed yesterday.

2. Fusion GPS and Perkins Coie Doth Protest Too Much

Yesterday saw four separate sets of motions to intervene, from would-be-intervenors Fusion GPS, Perkins Coie, Hillary for America, and Joffe. As of publication, the Democratic National Committee (DNC), which together with Hillary for America had hired Perkins Coie, has not filed a motion to intervene.

While there is nothing surprising about Hillary for America and Joffe seeking to intervene to protect their communications, Fusion GPS and Perkins Coie’s involvement seems strange because it is blackletter law that the attorney-client privilege “belongs solely to the client.” In other words, it is Hillary for America (and the DNC) holding the privilege, not the law firm of Perkins Coie, nor the investigative firm, Fusion GPS, that Perkins Coie hired. Similarly, it is Joffe who holds the privilege and not Sussmann or Fusion GPS.

Watch for the special counsel’s office to oppose intervention by both Fusion GPS and Perkins Coie. Also, given that Hillary for America and Joffe both filed motions to intervene, the court may well deny Fusion GPS and Perkins Coie’s attempts to jump into the case and leave the dispute to the clients to litigate.

Of course, Fusion GPS and Perkins Coie have already filed their proposed briefs in support of maintaining the secrecy of the 38 documents, so denying their motions to intervene will have little practical consequence. One unforeseen consequence, however, may be that the special counsel’s office points to inconsistencies in Fusion GPS’s brief and prior statements made by its founders to counter Hillary for America’s claims of attorney-client privilege.

3. Joffe Seemingly Confirms the False Statement Part of the Crime

While Fusion GPS and Perkins Coie hold no right to attorney-client privilege, as Sussmann’s claimed client, Joffe will likely be allowed to intervene to assert his claim of privilege. In seeking to intervene, Joffe filed with the court his proposed response to the special counsel’s motion to compel the filing with the court of various documents concerning Joffe. In his response, Joffe seemingly confirms that Sussmann lied, just as the special counsel’s office alleged.

Joffe “engaged Mr. Sussmann to assist him in a specific legal matter—namely to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and/or threats of violence and/or harassment,” according to Joffe’s brief.

This acknowledgment tracks precisely what the special counsel alleged Sussmann did: Sussmann allegedly told the FBI and the CIA that he was not representing a client when, in fact, he represented Joffe in meeting with the agencies. During those meetings, Sussmann shared with federal agents the supposed Alfa-Bank “intel,” and in the case of the CIA, the Yotaphone material.

Sussmann’s lines of defense seem to be shrinking by the day, with the text he sent to Baker the day before their meeting providing strong evidence that Sussmann told Baker he was not representing any client in sharing the Alfa-Bank material. Now Joffe seemingly confirms that he hired Sussmann to determine how to achieve that end, i.e., handing off the Alfa Bank data without revealing his identity.

But just hiring Sussmann is not enough to protect Joffe from the special counsel’s subpoena, because Durham is not demanding Joffe’s communications with Sussmann. Rather, the special counsel’s office is seeking four emails (and attachments) between Joffe and an employee of Fusion GPS.

While Joffe claims that Fusion GPS served as “an intermediary” to Sussmann to assist Sussmann in providing legal advice to Joffe, that argument is likely to fail because there is no evidence that Sussmann retained Fusion GPS on behalf of Joffe—as opposed to on behalf of the Clinton campaign. And if Fusion GPS was not an intermediary between Sussmann and Joffe, then there is no attorney-client privilege for Joffe’s communications with Fusion GPS.

4. Hillary’s Chutzpah

Not too long ago, news broke the Federal Election Commission had fined the DNC and Hillary for America in the six digits after finding probable cause that they violated federal election law by misreporting the purpose of certain disbursements. The disbursements concerned payments made between July 15, 2016 and August 26, 2016 to Perkins Coie and were described in disclosure reports as “legal services.” That money instead went to Fusion GPS for purported “opposition research.”

While Hillary for America and the DNC entered into a conciliation agreement to resolve the issue without conceding the violations, they also agreed not to further contest the commission’s finding of probable cause. Yet yesterday Hillary for America filed a motion to intervene to prevent the disclosure of materials in the possession of Fusion GPS and Perkins Coie that are supposedly protected by attorney-client privilege, supporting its motion with, among other things, a declaration by former campaign manager Robby Mook.

In his declaration, Mook states that he believed “throughout the campaign that whatever work Perkins Coie performed, either through its own professionals or through any contractors it may have engaged to assist, the work was done for the purpose of providing legal services and legal advice to [Hillary for America.]”

Of course, what Mook believes and what he “believes” are likely two different things, given that Mook launched the Russia collusion hoax on behalf of the Clinton campaign live on CNN based on what he “believed” Russia was doing. But, in any event, what Mook believes is irrelevant—what matters is what the district court concludes in the weeks to come.


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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Will The Court Allow Special Counsel John Durham To See Clinton Campaign Documents?

Will The Court Allow Special Counsel John Durham To See Clinton Campaign Documents?

Late Wednesday, Special Counsel John Durham filed a motion to compel the 2016 Hillary Clinton campaign, the Democratic National Committee, Fusion GPS, and Perkins Coie to provide the judge presiding over the Michael Sussmann criminal case copies of unredacted documents previously withheld from the government. The Clinton campaign and DNC have claimed the withheld or redacted documents are protected by attorney-client privilege.

Here’s what you need to know about yesterday’s filing.

First, the Background

Durham charged former Clinton campaign attorney Sussmann in September of last year in a one-count criminal indictment, alleging Sussmann lied to former FBI General Counsel James Baker when Sussmann shared data and white papers purporting to connect Trump to the Russia-based Alfa Bank. Sussmann allegedly told Baker he was sharing this “intel” on his own and not on behalf of any client. The indictment, however, charged that Sussmann in fact was acting on behalf of both the Clinton campaign and tech executive Rodney Joffe.

Following Sussmann’s indictment, the special counsel’s office served various subpoenas on those connected to the Alfa Bank hoax, including on the Clinton campaign; the DNC; Perkins Coie, the law firm representing the Clinton campaign; Fusion GPS, the investigative firm Perkins Coie hired; Joffe; and various tech companies Joffe is or was connected to.

Joffe refused to provide the subpoenaed documents, asserting his Fifth Amendment right against self-incrimination. The Clinton campaign, the DNC, Perkins Coie, and Fusion GPS withheld or redacted numerous documents, claiming these are protected by attorney-client or work product privilege.

Next, the Law

As Durham’s motion explains, attorney-client privilege protects communications “that a client conveys to his attorney for the purpose of security for an opinion on law, legal services, or assistance in a legal proceeding.” Such communications cannot be subpoenaed; the government also cannot question a witness about the content of such discussions. However, the party asserting the privilege has the burden of establishing that the communications are, in fact, privileged, and merely claiming they are is not enough.

While the attorney-client privilege applies generally only to communications between an attorney and a client, the privilege can extend to third parties under some circumstances. For instance, communications with non-lawyers hired to assist lawyers in the provision of legal services are privileged. But the key here is the communication must be “for the purpose of obtaining legal advice from the lawyer.”

In addition to the attorney-client privilege, the work product doctrine protects documents that were “prepared in anticipation of litigation or for trial” by third parties on behalf of the client.

Communications protected by attorney-client privilege can lose their protected status through waiver, where the information is shared with a third party. Additionally, the privilege is destroyed when the communication falls within the “crime-fraud exception,” although in this case, the special counsel’s motion does not rely on that theory to seek access to the documents. Instead, yesterday’s motion argues the communications withheld were not created, shared, or related to the provision of legal advice to either the Clinton campaign or the DNC.

Durham Wants the Documents, But Not Quite Yet

While Durham argues in Wednesday’s motion to compel that the redacted documents are not protected by attorney-client privilege, he acknowledges that without reviewing the content of the material, that assessment cannot be fully made. Thus, at this point, the government first seeks a court order compelling the third parties to provide the unredacted documents to the court for an “in camera” review, meaning a confidential review by the court.

In total, the third parties withheld and redacted more than 1,000 documents, but the government’s request seems focused on a much smaller population of documents, listed in Exhibit A filed in tandem with the motion. That exhibit, however, was filed under seal.

The motion instead provides a summary of the material Durham seeks. It fits within two categories. First, Durham’s team asks the court to review documents related to what the prosecution calls Fusion GPS’s “provision of opposition research and media strategy-related services” to the Clinton campaign, the DNC, and Perkins Coie. More specifically, the government requests the court review the unredacted version of the contract between Perkins Coie and Fusion GPS and 38 emails and attachments exchanged “between and among” Perkins Coie, Joffe, and Fusion GPS employees.

Second, the prosecution seeks a review of “certain communications” between Fusion GPS and Joffe related to the Alfa Bank theory, and related emails. Those communications include emails between Joffe and an unnamed Fusion GPS employee the government subpoenaed for Sussmann’s trial.

Clinton and the DNC in the Hot Seat

As noted above, the party advancing a claim of privilege bears the burden of establishing the communications are protected. That means that if they wish to preserve their privilege, the now-defunct Clinton campaign and the DNC will need to show why those communications are privileged.

The wrinkle in this case, of course, is that neither the Clinton campaign nor the DNC are parties to the criminal case. Most likely, presiding Judge Christopher Cooper will issue an order directing the third parties who possess the documents to file them under seal for an in camera review and provide the Clinton campaign and the DNC an opportunity to argue their claim of privilege.

Making that argument will be tough for several reasons. First, while Joffe and Sussmann had an attorney-client relationship, Joffe had no contractual relationship with the Clinton campaign, DNC, or Fusion GPS. Yet the Clinton campaign and the DNC asserted attorney-client privilege and work product protection, including over communications exchanged solely between Joffe and a Fusion GPS employee.

But there is no basis in law to withhold emails to, from, or copied to Joffe, since by including him in the emails, the communications would no longer be “in confidence,” even if they were arguably for “the purpose of obtaining legal advice from the lawyer.” In other words, any privilege would be waived.

The communications to, from, or copied to Fusion GPS likewise will not be protected unless they were “for the purpose of obtaining legal advice from the lawyer.” In its motion, the special counsel’s office acknowledges that Fusion GPS “conduct[ed] opposition research regarding Trump’s purported ties to Russia at the behest of the Clinton Campaign and the DNC” pursuant to a contract Fusion GPS entered with the law firm of Perkins Coie.

Durham also acknowledges that Marc Elias claims he provided legal advice to the Clinton Campaign about the Alfa Bank allegations. But that does not translate to Fusion GPS supporting Perkins Coie “related to legal advice.”

It Was a Hit Job, Not a Legal One

To the contrary, Durham argues that Fusion GPS’s “primary, if not sole, function” appears to be “to generate opposition research materials that the firm then shared widely with members of the media, the U.S. State Department, the Department of Justice, the Federal Bureau of Investigation (“FBI”), and members of Congress.” The government adds that while Perkins Coie hired Fusion GPS purportedly to “support” Perkins Coie’s legal advice to its clients on “defamation, libel and similar laws in which accuracy is an essential legal element,” Fusion GPS’s actions were unrelated to any such advice.

Rather, as the motion notes, the “evidence makes clear that the primary purpose” “was to assemble and publicize allegations that would aid the campaign’s public relations goals.” And, as Durham adds, the D.C. Circuit has previously held that advice from “a medial, journalistic [or] political’ consultant that is not used in providing legal advice is not privileged.”

Yesterday’s motion highlighted many of those public relation outreaches, arguing that Fusion GPS’ “role in promoting the wide dissemination of its own and others’ research would appear to contravene any notion that the primary purpose of their work was to aid confidential legal advice from [Perkins Coie] about potential libel and defamation litigation. “If anything,” the motion continued, Fusion GPS’s push for reporters to “hurry” to publish the Alfa Bank tale before resolving questions about its “authenticity” “would itself arguably create significant libel and defamation litigation risk,” the special counsel’s office quipped.

Based on these facts, Durham submits that the claims of attorney-client privilege and work product protections “deserve careful scrutiny.” After that review, the special counsel requests the court order the production of the documents in unredacted form. 

Sussmann Might Have Something to Say Too

While the motion to compel filed last night speaks only to the third parties who hold the privilege and the unredacted documents, Sussmann’s attorneys will likely weigh in too, repeating the complaint they made during last week’s status conference that followed the hearing on Sussmann’s motion to dismiss. At that time, Sussmann’s attorney complained that the special counsel’s office has been discussing privilege “for well over a year,” and that “to only now bring it up six weeks before trials” is unfair and raises due process concerns.

Sussmann, of course, could always agree to a continuance of the trial, but then he wouldn’t have the due process argument for a possible appeal in the event he is convicted—an insurance plan, so to speak.


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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Prosecutor unveils smoking gun FBI text message — smear Trump

Prosecutor unveils smoking gun FBI text message — smear Trump


Durham: Prosecutor unveils smoking gun FBI text message, ‘joint venture’ to smear Trump

Special Counsel John Durham revealed he has unearthed a text message showing Hillary Clinton campaign lawyer Michael Sussmann falsely told the FBI he was not working on behalf of any client when he delivered anti-Trump research.

By John Solomon

Special Counsel John Durham is revealing new smoking gun evidence, a text message  that shows a Clinton campaign lawyer lied to the FBI, while putting the courts on notice he is prepared to show the effort to smear Donald Trump with now-disproven Russia collusion allegations  was a “conspiracy.”

John Durham Probe Charges Washington Lawyer With Lying To FBI : NPR

In a bombshell court filing late Monday night, Durham for the first time suggested Hillary Clinton’s campaign, her researchers and others formed a “joint venture or conspiracy” for the purpose of weaving the collusion story to harm Trump’s election chances and then the start of his presidency. (Durham photo: Department of Justice via AP)

“These parties acted as ‘joint venturer[s]’ and therefore should be ‘considered as co-conspirator[s],’” he wrote.

Durham also revealed he has unearthed a text message showing Hillary Clinton campaign lawyer Michael Sussmann falsely told the FBI he was not working on behalf of any client when he delivered now-discredited anti-Trump research in the lead-up to the 2016 election. In fact, he was working for the Clinton campaign and another client, prosecutors say.

The existence of the text message between Sussmann and then-FBI General Counsel James Baker was revealed in a court filing late Monday night by Durham’s team. Prosecutors said they intend to show Sussmann gave a false story to the FBI but then told the truth about working on behalf of the Clinton campaign when he later testified to Congress.

“Jim – it’s Michael Sussmann. I have something time-sensitive (and sensitive) I need to discuss,” Sussmann texted Baker on Sept. 18, 2016, according to the new court filing. “Do you have availability for a short meeting tomorrow? I’m coming on my own – not on behalf of a client or company – want to help the Bureau. Thanks.”

Prosecutors said the text message will become essential evidence at trial to show Sussmann lied to the FBI.

You can read the court filing.

“The defendant lied in that meeting, falsely stating to the General Counsel that he was not providing the allegations to the FBI on behalf of any client,” Durham’s motion said. “In fact, the defendant had assembled and conveyed the allegations to the FBI on behalf of at least two specific clients, including (i) a technology executive (“Tech Executive-1”) at a U.S.-based Internet company (“Internet Company-1″), and (ii) the Clinton Campaign.”

The prosecutor noted that in House testimony a year later Sussmann admitted he made the FBI approach at the instruction of his client.

“We had a conversation, as lawyers do with their clients, about client 1 needs and objectives and the best course to take for a client,” Sussmann testified in a deposition taken by then-House Intelligence Committee Republican investigative counsel Kash Patel. “And so it may have been a decision that we came to together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict.”

Durham also told the court he plans to present evidence that Sussmann worked with the Clinton campaign, tech executive Rodney Joffe, identified as Tech Executive-1, and others in a “joint venture” to promote a now-disproven story that Donald Trump had a secret computer channel at the Moscow-based Alfa Bank with the Kremlin to hijack the election.

“As an initial matter, the Government expects that the evidence at trial will show that beginning in late July/early August 2016, the defendant, Tech Executive-1, and agents of the Clinton Campaign were ‘acting in concert toward a common goal,’ … namely, the goal of assembling and disseminating the Russian Bank-1 allegations and other derogatory information about Trump and his associates to the media and the U.S. government,” Durham’s team said.

“The evidence of a joint venture or conspiracy will establish,” according to the prosecutors, “that in November 2016, soon after the Presidential election, Tech Executive-1 emailed a colleague, stating, “I was tentatively offered the top [cybersecurity] job by the Democrats when it looked like they’d win.’”

“In sum,” the special counsel concludes, “the above evidence, public information, and expected testimony clearly establishes by a preponderance of the evidence that the defendant and Tech Executive-1 worked in concert with each other and with agents of the Clinton Campaign to research and disseminate the Russian Bank-1 allegations.”

Patel, who helped unravel the false Russia collusion narrative with former Rep. Devin Nunes, said the new filing by Durham is one of the most significant in the entire investigation to date.

“Durham has just shown the whole world what major pieces of our Russiagate investigation revealed,” Patel said. “Hard evidence, emails and text messages, showing the Clinton Campaign, Fusion GPS, Perkins Coie, Joffe, and the media were all synced in August of 2016 pushing the false Alfa Bank server story, while also all working on the Steele Dossier matter. Durham submits all this evidence as ‘joint venture conspiracy’ under the rules of evidence.”

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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 pictorial content added by (TLB)

Header featured image (edited) credit: John Durham and Donald Trump/ Associated Press; Getty Images

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