Trial Docs: Sussmann Edited FBI Press Release About DNC Hack Because It ‘Undermined’ The DNC’s Narrative

Trial Docs: Sussmann Edited FBI Press Release About DNC Hack Because It ‘Undermined’ The DNC’s Narrative

Documents released during Michael Sussmann’s federal trial show the FBI solicited advice from Hillary Clinton’s lawyer on a press release describing the intelligence agency’s awareness of the Democratic National Committee hack in 2016.

The original press release sent over to Sussmann by Jim Trainor, the assistant director of the FBI’s Cyber Division, noted that the FBI was aware of “a possible cyber intrusion involving the DCCC,” or the Democratic National Campaign Committee, via “recent media reporting.”

“Michael – our press office is once again getting a ton of calls on the DCCC matter. A draft response is provided below. Wanted to get your thoughts on this prior to sending out,” Trainor wrote.

In his reply, Sussmann asked the FBI to change the first line of the press release to reflect the DNC’s messaging on the hack. He explained that he preferred a more definitive statement that made clear “the FBI is aware of the cyber intrusion involving the DCCC that has been reported in the media.”

“The draft you sent says only that the FBI is aware of media reports; it does not say that the FBI is aware of the intrusion that the DCCC reported. Indeed, it refers only to a ‘possible’ cyber intrusion and in that way undermines what the DCCC said in its statement (or at least calls into question what the DCCC said),” Sussman wrote. “The other implication in your statement that could benefit from updating is that the FBI, just now, is looking into the nature and scope of the DCCC matter. In fact, the FBI has been aware of the DCCC intrusion for some time, and even (previously) received network indicators from the DCCC (i.e., from CrowdStrike).”

Trainor accepted the suggestions with minor protest and agreed to send out Sussmann’s manipulated version of the press release soon.

“Mike – I am fine with the below suggestions. We try to really limit what we see and not acknowledging too much but the below edits are fine and we will send out,” Trainor wrote.

After just one day of deliberations, a D.C.-based federal jury found Sussmann not guilty. During the trial, however, key information further implicating the Democrat party’s efforts to destroy the Trump campaign surfaced and confirmed what outlets such as The Federalist have long reported.

As Federalist Senior Legal Correspondent Margot Cleveland wrote in her analysis of the trial, “United States v. Sussmann exposed that Hillary Clinton holds full responsibility for the Russia collusion hoax.”

Not only did Clinton’s former campaign manager Robby Mook testify that the failed presidential candidate personally endorsed parroting the Alfa Bank narrative to anyone in the media who would listen but, as Cleveland noted, “The Sussmann prosecution also dispatched the lingering claims that a secret communication channel between Trump and Russia truly existed as “‘5150,’ or delusional, talk.”

“Even the acquittal of Sussmann will not erase these facts. So for all posterity, Clinton’s fingerprints will be seen covering the worst political scandal of our country’s history,” Cleveland wrote.


Jordan Boyd is a staff writer at The Federalist and co-producer of The Federalist Radio Hour. Her work has also been featured in The Daily Wire and Fox News. Jordan graduated from Baylor University where she majored in political science and minored in journalism. Follow her on Twitter @jordanboydtx.

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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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Emails Surface More Evidence Hillary Clinton Paid For Anti-Trump Disinformation Operation

Emails Surface More Evidence Hillary Clinton Paid For Anti-Trump Disinformation Operation

Evidence continues to mount that the Hillary Clinton campaign paid former MI6 agent Christopher Steele to launder fraudulent opposition research through U.S. intelligence agencies.

Newly published internal emails reveal that before Fusion GPS hired Steele on behalf of the Clinton campaign to dig up dirt on Donald Trump, the opposition-research firm began peddling several of the same Russia collusion lies that the former MI6 agent would later detail in the Steele dossier. This fact highlights a significant aspect of the Spygate scandal that deserves further focus and condemnation: Democrats’ outrageous exploitation of intelligence credentials and connections to launder scurrilous accusations against a political enemy.

Since early 2018, when the then-Chair of the House Intelligence Committee Devin Nunes exposed in a four-page memorandum evidence that the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) had abused the Foreign Intelligence Surveillance Act during the 2016 presidential election cycle, Americans open to reality have been slowly learning of the breadth of the Spygate scandal.

Attention during this time rightly focused first on FISA abuse and the FBI’s use of unverified “intel” to obtain a court order to surveil former Trump campaign advisor Carter Page. As the scandal continued to unravel, the categories of impropriety multiplied, from deep-staters illegally leaking to the media to build the collusion narrative and later to force the appointment of a special counsel, to the selection of the “right people” in the form of rabid partisans to staff the Crossfire Hurricane team.

Another underlying aspect of the scandal only became clear recently with the prosecution of former Clinton campaign attorney Michael Sussmann. Proceedings in Special Counsel John Durham’s false statement criminal case against Sussmann reveal Democrats paid credentialed individuals connected to U.S. intelligence agencies to pass, to both the press and the government, invented evidence of Trump colluding with Russia.

Sussmann, who previously worked for the DOJ, represents one such connected individual whose credentials served to hide the Clinton campaign’s responsibility for creating the Russia-collusion disinformation. Over the last several months, filings in the special counsel’s criminal case against Sussmann have exposed how he played his relationships with FBI and CIA agents to score meetings to pass on data and “white papers” related to the Alfa Bank and Yota phone Russia hoaxes, while hiding their origins.

Now, a batch of emails between Fusion GPS and journalists made public earlier this week in the Sussmann case after the special counsel’s office inadvertently filed them on the public docket suggest Steele was paid for the same reason: his credentials and connections would hide the political nature of the hit.

Those emails reveal that the month before Fusion GPS hired Steele, it had begun spinning the tale that the Trump campaign-connected Carter Page served Russian interests. In mid-May 2016, Fusion GPS’s Jake Berkowitz emailed Slate reporter Franklin Foer about Page. The note, which includes several links with prefatory sentences about Page, reads as a collaborative effort to investigate the Trump advisor.

Peter Fritsch, the co-founder of Fusion GPS, also joined in the email thread. It continued a few days later, with Berkowitz sharing with Fritsch and Foer his latest “research” on Page. That email included a couple of names of “former partners” of Page and a link to a Medium.com article critical of Page. The Medium article also attacked Trump’s then-volunteer campaign advisor George Papadopoulos, whom the FBI would later claim prompted the launching of Crossfire Hurricane when Papadopoulos supposedly bragged that the Russians had dirt on Hillary.

The Fusion GPS researchers continued to share the results of their probe into Page with Foer. Berkowitz on May 19, 2016 told his Fusion GPS boss and the reporter that “some Merrill bond issuances during Page’s tenure” at the investment banking firm of Merrill Lynch involved some “interesting characters,” including Alfa Bank and its founders. To that email, Foer responded that he is “going to do some work on Rick Burt,” whom he bets “does some work for the Russians.” Foer would then claim in a follow-up email that Burt was on the Alfa Bank board.

Foer incorporated the early research he exchanged with Fusion GPS in his Slate piece, “Vladimir Putin has a Plan for Destroying the West—and It Looks a Lot Like Donald Trump,” which cast Page, Papadopoulos, and the Alfa-Bank-connected Burt as Russian-compromised associates of Trump. Foer was also the “journalist” who ran the Alfa Bank tale at Slate just two weeks before the presidential election. Emails exchanged in late June between Fritsch and Foer also show Fusion GPS focusing on Sergei Millian, with Fritsch declaring that Millian is “clearly kgb.”

Fusion GPS continued to exchange emails over the next three months with Foer and other Democrat scribes, such as the Washington Post’s Tom Hamburger and Mark Hosenball from Reuters. Millian was a subject of a July 24, 2016 email sent by Fusion GPS’s other founder, Glenn Simpson, to Hamburger. In that late-July email, Simpson provided the Post’s “journalist” three email addresses for Millian, suggesting a push by Fusion GPS to have reporters focus on Millian as part of the Russia-collusion hoax.

These emails prove significant much beyond exposing the symbiotic relationship that existed between the Clinton-funded Fusion GPS and the unpaid propagandists in the press. That’s because the timing and targets of the communications indicate Democrats paid for Steele to stamp their opposition research with an MI6 imprimatur.

The law firm of Perkins Coie first hired Fusion GPS in April 2016 to conduct opposition research on Trump on behalf of the Clinton campaign and the Democratic National Committee. But Fusion GPS did not retain Steele until June 2016, with Steele’s initial memorandum being first dated June 20, 2016. By then, however, Fusion GPS had already targeted Page and highlighted Alfa Bank as suspect. Fusion GPS’s communications with the press pre-Steele also focused on Page’s role as an advisor for the Trump campaign and various connections to Alfa Bank.

Steele’s dossier would later seemingly confirm Fusion GPS’s framing of Page as a Russian agent based on the numerous lies Steele’s “primary sub-source,” Igor Danchenko, fed the former MI6 agent. Among his other lies, Danchenko, who is currently under indictment for making false statements to the FBI, falsely claimed that Millian had provided detailed intel related to the Trump campaign and Page.

While Steele did not name Danchenko or Millian in his memoranda, his dossier not only identified Page but framed Page as a Russian agent. The Steele dossier then served as the basis for the FBI to obtain a FISA court order to surveil Page, and in turn, the Trump campaign.

The DOJ’s Office of Inspector General has already excoriated the DOJ and FBI agents involved in obtaining FISA surveillance orders for Page for misconduct, but the blame extends further to the FISA court. It issued the unconstitutional surveillance orders based on Steele’s work as a former MI6 agent.

No wonder Fusion GPS paid Steele. They needed his credential as an MI6 agent to provide gravitas to their opposition research and to hide the Clinton-campaign roots of the attacks on Trump. The Clinton campaign also needed Steele to exploit his government contacts, which the former spy did by passing the dossier off to his handler, his pal Bruce Ohr, and later the U.S. State Department. Steele thus served as a facade for Democrats’ attempt to frame Trump as a Russian patsy.

The email dump earlier this week, which represents but a fraction of “the hundreds” of emails between Fusion GPS and reporters, further reveals this reality by showing that Fusion GPS already had the storyline it paid Steele to compile well in hand before they retained the former MI6 agent. The same could be said for the journalists.


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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Letter: No, Hillary Clinton Can’t Try To Hide 2016 Oppo Research From The Special Counsel

Letter: No, Hillary Clinton Can’t Try To Hide 2016 Oppo Research From The Special Counsel

The Hillary Clinton campaign and Democratic National Committee’s claims of attorney-client privilege in the Michael Sussmann criminal case may constitute a breach of the settlement agreements they entered with the Federal Election Commission, according to a letter sent to Special Counsel John Durham’s office on Friday.

That letter, obtained first by The Federalist, followed the flurry of motions to intervene filed in the special counsel’s pending false statement case against Sussmann. Hillary for America, the DNC, tech executive Rodney Joffe, Sussmann’s former law firm of Perkins and Coie, and the investigative firm Fusion GPS all filed motions last week asking the court for permission to argue against disclosing documents to the special counsel based on their claims of attorney-client privilege.

The special counsel’s office had previously filed a motion arguing that the court should review 38 documents withheld in response to grand jury subpoenas to assess whether the secreted material truly qualified as protected by attorney-client privilege. The day after Sussmann responded to that motion, opposing any such in camera review by the judge, his fellow Spygate hoaxers sought to join in Sussmann’s efforts to keep the documents concealed.

After the Hillary for America and the DNC’s motions to intervene hit the Sussmann docket, The Coolidge Reagan Foundation penned a three-page letter to Durham and Assistant Special Counsel Jonathan Algor. That letter alerted the special counsel’s office to key facts about the FEC’s recent decision to fine the political groups in relation to a complaint the foundation had filed with the FEC. That complaint charged Hillary for America and the DNC with using the “law firm, Perkins Coie, to hire and funnel over $1 million to ‘outside research firms’ such as Fusion GPS ‘to perform potentially sensitive, controversial, or politically embarrassing’ opposition research into Donald Trump.”

The FEC complaint, filed in 2018, alleged that “the research was not ‘for the purpose of assisting Perkins Coie in providing legal advice,’” but to further the “political and campaign-related goals” of the organizations. The foundation also claimed in its FEC complaint that because the work was not “for the purpose of providing legal advice or assisting with impending or potential litigation, it was not covered by attorney-client, work-product, or other privileges.”

Significantly, as the foundation noted in its April 22, 2022 letter to the special counsel’s office, the FEC had “found probable cause to believe” the political organizations had misreported the purpose of certain disbursements. The FEC reached that conclusion based on a memorandum prepared by the FEC’s Office of General Counsel, but under controlling regulations that memorandum “will not be made public for another week,” the letter explained.

Foundation counsel Dan Backer added that while the memorandum is not yet public, the special counsel’s office would likely be able to obtain it directly from the FEC. That memorandum also will provide Durham’s team further details on the FEC’s investigation and fact-finding that may be useful to the special counsel in the Sussmann litigation, noted the letter.

In Friday’s letter, Backer also highlighted Hillary for America and the DNC’s commitment in their settlement agreement with the FEC to “not further contest the Commission’s finding of probable cause to believe” that the political organizations had “falsely reported their payments through Perkins Coie to Fusion GPS as being for legal services.” In contrast, in the Sussmann case, Hillary for America and the DNC “are nevertheless asserting materials generated by Fusion GPS and provided to Perkins Coie are protected by attorney-client privilege and work-product doctrine,” the letter stressed.

“The Government should not permit HFA and the DNC to adopt conflicting positions in different proceedings, depending on the federal agency against which they are litigating,” the foundation’s letter concluded, suggesting the trial court may find those breaches of the settlement agreement “material in ruling on any privilege claims.”

Whether the special counsel will follow the foundation’s suggestion and obtain the memorandum prepared by the FEC’s Office of General Counsel before the judge in the Sussmann case rules on the Clinton campaign and the DNC’s assertions of attorney-client privilege is yet to be seen. But what is clear is that the special counsel’s office intends to ensure the jury knows that both the Clinton campaign and the DNC believe communications relevant to Sussmann’s efforts to peddle the Alfa Bank hoax are protected by attorney-client privilege.

On Friday we also learned just how the special counsel hopes to do that—by having representatives of both the Clinton campaign and DNC testify at trial. That revelation appeared in a response brief Sussmann’s attorneys filed last week, wherein the defense team noted that they had just learned that the special counsel had issued trial subpoenas to both the Clinton campaign and the DNC. According to Sussmann’s legal team, the special counsel requested “the testimony of witnesses” from those political organizations “regarding the assertion of attorney-client privilege in front of the jury.”

Sussmann is now also seeking to exclude that testimony and claims that both the Clinton campaign and the DNC will likewise seek to quash the subpoenas.

The irony in all of this, of course, is that the more Sussmann, the Clinton campaign, and the DNC hide behind the claims of attorney-client privilege, the more it appears that, yes, Sussmann pushed the Alfa Bank hoax, including during his meeting with FBI General Counsel James Baker, on behalf of the Clinton campaign. The FEC’s conclusion that probable cause existed to support the finding that the Clinton campaign and DNC had falsely reported fees paid to Fusion GPS as legal fees only further supports that conclusion.

The question Friday’s letter to the special counsel’s office raises, however, is whether the Clinton campaign and the DNC’s settlement agreement with the FEC, in fact, forecloses their claims of privilege in the Sussmann case. Backer believes it does, telling The Federalist, “The Clinton Campaign and the DNC want to have their cake and eat it too, but they cannot simultaneously say they won’t contest the reasoning behind the FEC fine and settlement agreement and also run to federal court and say, ‘No, no, no, everything we do is privileged.’”

That, however, is precisely what Hillary for America and DNC are doing, leading one to wonder if the real issue in play is not attorney-client privilege, but the privilege of being a Democrat.


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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Federal Judge Refuses To Toss Russiagate Charges Against Former Clinton/DNC Lawyer

Federal Judge Refuses To Toss Russiagate Charges Against Former Clinton/DNC Lawyer

A federal judge denied a motion to dismiss charges against a former attorney for the Clinton campaign at the center of the Russia hoax Wednesday.

Michael Sussmann, a Washington attorney and former federal prosecutor, was indicted by a grand jury in September for making a false statement to the FBI five years prior. The charges stemming from the probe into the origins of the Russia hoax by U.S. Special Counsel John Durham allege Sussmann misrepresented his own capacity to the federal law enforcement agency when making claims of a Kremlin collusion with the Trump campaign. Sussmann told the FBI he was not working on behalf of any clients when instead he was working on behalf of the Clinton campaign and an anonymous “U.S. technology industry executive” later revealed as Rodney Joffe, according to federal prosecutors.

The disgraced attorney filed a motion to dismiss the charges in February arguing the misrepresentation of his own affiliation was immaterial, and citing Section 1001 of the criminal code which outlaws “a materially false, fictitious, or fraudulent statement or representation.” The judge found Sussmann’s defense claims unconvincing.

“While Sussmann is correct that certain statements might be so peripheral or unimportant to a
relevant agency decision or function to be immaterial under § 1001 as matter of law,” wrote U.S. District Judge Christopher Cooper, “the Court is unable to make that determination as to this alleged statement before hearing the government’s evidence.”

Prosecutors say Sussmann gave FBI General Counsel James Baker “white papers” in September 2016 supposedly showing discreet communication channels between the Trump Organization and Alfa Bank, one of Russia’s largest financial institutions.

Sussmann is one of three individuals to face charges from Durham’s probe to date. Former FBI attorney Kevin Clinesmith was sentenced to 12 months probation after pleading guilty in August 2020 to fabricating evidence for a spy warrant on Trump adviser Carter Page. The District of Columbia Bar Association restored Clinesmith as a member in “good standing” in December 2021 despite his role in perpetrating one of the greatest hoaxes in American history undermining the first half of the Trump presidency.

In November, federal authorities also arrested Igor Danchenko, the primary sub-source for the discredited Steele dossier which served as the basis to paint Trump as an undercover creature of the Kremlin.


Tristan Justice is the western correspondent for The Federalist. He has also written for The Washington Examiner and The Daily Signal. His work has also been featured in Real Clear Politics and Fox News. Tristan graduated from George Washington University where he majored in political science and minored in journalism. Follow him on Twitter at @JusticeTristan or contact him at Tristan@thefederalist.com.

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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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5 Key Takeaways From Clinton Lawyer Michael Sussmann’s Latest Attempt To Get Criminal Charges Dismissed

5 Key Takeaways From Clinton Lawyer Michael Sussmann’s Latest Attempt To Get Criminal Charges Dismissed

Thursday morning a federal judge heard arguments on former Clinton Campaign attorney Michael Sussmann’s motion to dismiss the Special Counsel’s criminal case against him. Then, after taking the motion under advisement, presiding Judge Christopher Cooper considered a variety of housekeeping matters. Here’s what we learned from Thursday’s hour-long proceedings.

1. Sussmann Is Likely to Lose His Motion and Face a Jury

Thursday’s hearing began shortly after 10:00, with Judge Cooper, a Barack Obama appointee, first considering Sussmann’s motion to dismiss the criminal indictment returned in September of last year. That indictment charged the former Clinton Campaign attorney with making false statements to the FBI General Counsel James Baker on September 19, 2016, when Sussmann provide Baker with “white papers” and data ostensibly showing a secret communications channel existed between the Trump organization and the Russia-connected Alfa Bank.

According to the one-count indictment, when Sussmann met with Baker, Sussmann falsely claimed he was not acting on behalf of a client. In fact, though, the indictment charged that at the time Sussmann was working both for the Clinton Campaign and an unnamed “U.S. technology industry executive,” since identified as Rodney Joffe. That lie, according to the indictment, constituted a false statement violative of Section 1001 of the federal criminal code

Thursday’s hearing opened with Sussmann’s attorney, Michael Bosworth from the law firm of Latham & Watkins, reiterating to the court many of the arguments Sussmann’s legal team had presented to the court in the Motion to Dismiss it filed in February. In that motion, Sussmann’s attorneys argue that even if Sussmann had lied to Baker — a fact Sussmann disputes — the lie was not “material.” And since Section 1001 criminalizes only “a materially false, fictitious, or fraudulent statement or representation,” Sussmann’s legal team argued that he committed no crime.

Over the course of the hour-long hearing, Sussmann’s attorney argued that his client’s alleged lie was immaterial from a variety of angles. With every argument for dismissal presented, however, Judge Cooper challenged Bosworth, and at one point, Sussmann’s attorney even acknowledge that he would move on as the court seemed to see his argument “not that persuasive.”

While Judge Cooper likewise peppered Special Counsel Durham’s lead prosecutor, Andrew DeFilippis, with questions on the issue of materiality, the court’s queries strongly suggested Sussmann’s attempt to have the criminal charge tossed will fail. And from a legal perspective, as I explained following the briefing, it should fail.

The court, however, did not rule from the bench but instead took the motion under advisement, telling the parties who were participating remotely that he would issue a decision “sooner rather than later,” which likely means an order will issue by early next week.

2. The Crossfire Hurricane Team Was Inept

Although Thursday’s substantive hearing focused solely on Sussmann’s Motion to Dismiss, the arguments presented revealed several interesting tidbits. For instance, both parties agreed that Baker’s testimony would be that he did not ask Sussmann if he was representing a client; rather, Sussmann volunteered to the FBI General Counsel that he was not there on behalf of any client.

The more intriguing revelation, though, comes from what else the FBI did not ask Sussmann. According to Bosworth, at no point did the FBI ask Sussmann where the data and white papers came from. Bosworth stressed this point to argue that the Special Counsel’s claim that the lie was material was “nonsensical.”

In arguing the lie was material, the Special Counsel’s office had noted that it intended to call a government witness who would testify that the “first thing you ask is where was the data from.” In his rebuttal argument, Bosworth stressed that the government’s claim that the FBI would have asked where the data came had Sussmann not lied is “nonsensical” because “at no point” did anyone involved in the investigation ask Sussmann where he got the data from that he presented to Baker.

Initially, this argument cuts against Sussmann’s position because, as the government pointed out, Sussmann’s lie “lulled” the FBI into believing the data came from a legitimate disinterested source when it did not. But the bigger takeaway from this exchange is that the Crossfire Hurricane team was so inept, biased, or blind that it didn’t ask that very basic question: Where did this data showing a Trump-Russia secret communication channel come from?

That the Crossfire Hurricane team failed in this basic respect, however, does not help Sussmann, because in determining if a lie is material, the focus is on a hypothetical “objective” government official and not on how any one individual would have acted had they known the truth.

More significantly, though, this exchange shows that the Special Counsel’s team will present government witnesses who will establish that, yes, a reasonable, objective FBI agent’s first step would be to determine the data source — proving Comey’s team was anything but reasonable or objective.

3. Jury Instructions Will Be Key

The oral argument also revealed just how significant jury instructions will be to whether Sussmann is convicted.

Throughout the argument, Bosworth stressed the defense’s position that for a lie to be “material” it must have a sufficient nexus to the subject of the investigation, rather than be ancillary to the investigation. Further, the purported false statement must be something “that is more than trivial” and “more than negligible.”

Bosworth initially argued that the alleged lie in this case could not pass these standards, as a matter of law. “As a matter of law” means that it is a question for the judge to decide, as opposed to a jury, and Bosworth argued that in this case, the court should dismiss the case.

However, Sussmann’s attorney then noted that if it is a jury question, the jury must be “properly instructed” that the lie must be something “more than trivial” — “it must matter.” And it is important that the jury be instructed the lie cannot be about an “ancillary” or “non-determinative fact,” Bosworth added, before noting that “we will fight this at the jury instruction stage.”

This preview provides an interesting insight into the future of this case, with the parties likely jockeying over the precise explanation of “materiality” the jury will receive. If Sussmann succeeds in having the jury instructed that the lie must be “more than trivial” and that it cannot be “ancillary” to the criminal case, Sussmann’s chances of acquittal will increase substantially because a talented trial attorney can convey the impression that something material is trivial. But the jury instruction battle is still several motions away.

4. A Flurry of Motions In the Works

While the jury instruction fight will not happen for some time, there are several other disputes likely to monopolize the court’s time in the interim, as revealed after the court moved on to the “status conference” portion of the hearing.

After announcing his intent to take the case under advisement, Judge Cooper noted (using the applicable jargon) he had a few issues of discovery related to classified material to resolve and then asked if there were any issues. At this point, Sussmann’s attorney noted it would be filing various motions, including one related to what is called rule 404(b) evidence.

Rule 404(b) evidence is “character evidence” or evidence showing the defendant engaged in other crimes or wrongful acts. The government notified Sussmann’s legal team of its intent to admit at least two separate pieces of Rule 404(b) evidence and Bosworth noted that the defense would be filing a motion to exclude that evidence. There was no discussion, however, as to the content of that evidence.

Sussmann next raised a concern over the government’s disclosure of an expert witness it intended to call in support of its case against Sussmann. Bosworth argued that the government’s notice of its intent to present expert testimony was untimely because with a mere six weeks until trial, it does not provide Sussmann time to find an expert to counter the prosecution’s expert.

A discussion then followed on the intended scope of the expert testimony, with DeFilippis explaining that it intended merely to provide background or a “tutorial” about DNS data, but that if Sussmann attempted to argue that the Alfa Bank data was accurate, that the government would use its expert to counter that point. Sussmann’s legal team objected to the use of the expert to challenge the Alfa Bank data and noted that it would be filing a motion soon if they could not reach an agreement.

Finally, Bosworth raised with the court a complaint over the Special Counsel’s intent to try to pierce attorney-client privilege being asserted by Hillary for America, the DNC, and Fusion and to present evidence obtained from those third parties at trial against Sussmann. A challenge at this late date, Sussmann’s lawyer argued “would be wildly untimely” and now, with only six weeks before trial, implicates Sussmann’s due process rights. “In our view,” Bosworth continued,” it is “an ambush” and could potentially change the entire parameter of the case.

DeFilippis noted in response that the Special Counsel’s office has been working with the “privilege holders,” meaning the clients, naming them as Joffe, the Clinton Campaign, and “another political organization,” and has been busy hashing out the issue of privilege. But, a motion will need to be presented, DeFilippis added, providing for purposes of illustration that the Clinton Campaign is claiming privilege over communications with Joffe that they are not even copied on. Sussmann’s legal team again objected to the lateness of the hour to resolve these questions—something his attorneys will surely argue when the motion is forthcoming.

The judge then directed the parties to discuss a schedule for briefing these three motions and adjourned the hearing.

5. The Case Will Not Be Over Anytime Soon

After this morning’s hearing, one final point is clear: This case will not be over soon unless Sussmann is acquitted.

Soon after he was indicted, Sussmann insisted on a speedy trial, and one is set to start with jury selection on May 16, 2022. If the jury acquits the former Clinton campaign attorney, the case will be over then.

But if a jury convicts Sussmann, he has already previewed several arguments for an appeal, including his claim that his purported lie is immaterial as a matter of law. If he loses, he will also likely challenge any refusal by the court to provide his desired jury instructions. Then he has the “due process” arguments he floated Thursday based on the lateness of the hour to pierce the attorney-client privilege of third parties, such as Joffe and the Clinton Campaign.

Given Bosworth’s near-flawless execution during Thursday’s argument, even when holding a losing argument, it seems clear that even if Sussmann is guilty, convicting him is not going to be an easy task, and obtaining a conviction that withstands appeal will be even more difficult.


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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Can Trump Win His Lawsuit Against Hillary Clinton And The DNC For Their Russia Collusion Lies?

Can Trump Win His Lawsuit Against Hillary Clinton And The DNC For Their Russia Collusion Lies?

Last week, former President Donald Trump filed a sprawling lawsuit against Hillary Clinton and the other main players responsible for the Russia collusion hoax. Here’s your lawsplainer for Trump v. Clinton, et. al.

First, the Facts

The 103-page complaint filed in a Florida federal court on Thursday begins with a synopsis of the Democratic plot to frame Trump as a Russian asset, spurring the Crossfire Hurricane investigation into his presidential campaign and later his administration. Among other things, the lawsuit highlights the Clinton campaign’s hiring of Perkins Coie, alleging the law firm “was tasked with spearheading the scheme to find — or fabricate — proof of a sinister link between Donald J. Trump and Russia.”

According to the lawsuit, Perkins Coie lawyers Marc Elias and Michael Sussmann enlisted others, including the investigative firm of Fusion GPS and its co-founders, Peter Fritsch and Glenn Simpson, and “Neustar, Inc., an information technology company, and one of its top executives, Rodney Joffe.” The complaint then detailed Fusion GPS’s hiring of Christopher Steele, the principal and founder of Orbis Ltd., and Steele’s use of Igor Danchenko as a primary sub-source for the fraudulent Steele dossier that the defendants fed to the FBI and the media to craft the Russia-collusion narrative.

Simultaneously, Joffe and others exploited “their access to non-public data in search of a secret ‘back channel’ connection between Trump Tower and Alfa Bank,” the complaint alleged, but, according to the complaint, after discovering “no such channel existed, the defendants resorted to truly subversive measures hacking servers at Trump Tower, Trump’s private apartment, and, most alarmingly, the White House.” “This ill-gotten data was then manipulated to create a misleading ‘inference’” of Russia collusion,” the complaint charged. That data was then provided to the FBI and CIA, as well as peddled to the media.

In turn, the complaint continued, what Trump called a “small faction of Clinton loyalists” in the Department of Justice and FBI, including James Comey, Andrew McCabe, Peter Strzok, Lisa Page, Kevin Clinesmith, and Bruce Ohr, allegedly abused their authority by, among other things, obtaining the illegal FISA warrant to spy on former Trump campaign advisor Carter Page and to trigger the appointment of Special Counsel Robert Mueller. Together, these schemes caused Trump to incur upward of $24 million to defend against the false charges Clinton and her cronies concocted, the lawsuit alleged as damages.

This summary represents a fraction of the details included in the complaint — and an even smaller sliver of the totality of the facts of SpyGate — but it sets the stage sufficiently to understand the theories Trump’s legal team present: Trump’s lawyers allege a total of 16 separate counts, ranging from RICO claims to state law tort claims.

1. RICO and RICO Conspiracy

In Count I of the complaint, Trump sues Clinton, the Clinton campaign, the Democratic National Committee, Perkins Coie, and lawyers Elias and Sussmann under the Racketeer Influenced and Corrupt Organizations Act, better known as “RICO.” While racketeering, as defined in the statute, constitutes a federal crime, in passing RICO Congress also created a “civil right of action,” meaning those harmed by violations of RICO could sue for damages civilly.

To state a civil RICO claim, a plaintiff such as Trump must allege four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. To satisfy the “pattern of racketeering activity element,” a plaintiff must allege: “(1) that defendants committed two or more predicate acts within a ten-year time span; (2) the predicate acts were related to one another; and (3) the predicate acts demonstrate criminal conduct of a continuing nature.” 

In his complaint, Trump alleged Clinton, her campaign, the DNC, Perkins Coie, Elias, and Sussmann constituted an “enterprise” within the meaning of the statute. Whether this group, coming together to push the Russia collusion hoax, qualifies as a RICO enterprise presents an interesting question, but one ultimately irrelevant, as will soon be seen, given the underlying predicate acts Trump alleges.

Specifically, Trump alleges two possible “predicate acts” or underlying crimes, the defendants allegedly committed, which his legal team then argues establishes a RICO violation. First, the complaint alleges that the RICO defendants conspired with Neustar and Joffe to “abuse and exploit” “non-public and highly sensitive data sources,” which gave the defendants access to “proprietary, sensitive and confidential information, data and/or knowledge.” That sensitive and confidential information, according to the complaint, constitutes “trade secrets,” and thus by “appropriating” that information,” Trump alleges the defendants committed a crime in violation of the Defend Trade Secrets Act.

The second “predicate act” or underlying crime alleged by Trump is “obstruction of justice,” which criminalizes the corrupt influencing or impeding of “the due administration of justice.” In alleging this act, Trump points to the defendants conspiring with the other players to present “misleading and inaccurate” information to law enforcement officials, which “obstructed” and “influenced” the Crossfire Hurricane investigation.

Of these two potential crimes, only the second seems to stand a chance of satisfying the requisite RICO standard of alleging a pattern of criminal conduct, as the trade secrets alleged seem too much of a stretch under the law — more on that below. But even though the allegations of obstruction of justice arguably qualify, the statute of limitations will still stymie Trump.

Civil RICO claims are subject to a four-year statute of limitations, and that four-year time period begins to run “when a plaintiff knew or should have known of his injury. “In other words, the ‘discovery of the injury,’ not discovery of the other elements of a claim, is what starts the clock.”

In this case, Trump arguably knew before March 2018 — four years before Trump filed his RICO claim — of his injury given the appointment of Robert Mueller occurred in May 2017. But, at a minimum, by January 2018 Trump had actual knowledge of several aspects of the entire plot, with Devin Nunes, the then-chair of the House Intelligence Committee, detailing in a memo the Clinton campaign’s role in paying for the Steele dossier and highlighting the DOJ and FBI’s abuse of the FISA court.  Under these circumstances, it seems likely the court will dismiss Trump’s RICO claim as barred by the statute of limitations.

In addition to the RICO claim, Trump alleged in Count II that a slew of defendants conspired to violate RICO. Those defendants included Debbie Wasserman Schultz, the former DNC chair; Charles Halliday Dolan, Jr., a Clinton backer who fed Danchenko false information that ended up in the dossier; Jake Sullivan, Clinton’s foreign policy advisor during the 2016 campaign; John Podesta, the chair of the 2016 Clinton campaign; Robert Mook, the Clinton campaign manager; Phillipe Reines, a communications advisor to Clinton; Fusion GPS, its owners (Simpson and Fritsch) and its contractor, Nellie Ohr; Bruce Ohr, Nellie’s husband and a DOJ employee; Orbis Business Intelligence, Ltd., its founder Steele, and Danchenko, a source for Steele; and tech company Neustar, Inc., and its agent Rodney Joffe.

While RICO makes it illegal to conspire to violate the substantive provisions of RICO, by either agreeing to the overall objective of the conspiracy or by showing that the defendant agreed to commit two predicate acts, in this case, Trump’s RICO conspiracy claim will likely fail for the same reason his RICO claim will be dismissed — it was untimely and thus is barred by the statute of limitations.

2. Injurious Falsehood and Conspiracy to Commit Injurious Falsehood

Trump’s next two claims concern the alleged state law tort of “injurious falsehood” and conspiracy to commit injurious falsehood, alleged respectively in Counts III and IV. (Count III’s heading inaccurately references 18 U.S.C. 2701, a separate claim Trump presents later).

Injurious falsehood is a state claim much like defamation but designed to compensate an individual for injury to his economic interests. Losses recoverable here are those “directly and immediately” resulting “from the falsehood’s effect on the conduct of third persons and the expenses incurred to counteract the publication.”

To state a claim for injurious falsehood in Florida, the complaint must allege “(1) a falsehood; (2) published or communicated to a third party; (3) the defendant knew that the falsehood would likely induce others not to deal with the plaintiff; (4) the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and (5) special damages.”

In this case, Trump claims Clinton, Sussmann, Steele, Danchenko, Sullivan, and Schultz on multiple occasions disseminated false and damaging information indicating Trump was colluding with Russia and that as a result of these falsehoods Trump spent more than $24 million to counter the claims. It is unclear whether that type of alleged harm qualifies as an “economic interest” for purposes of an “injurious falsehood” claim, which typically concerns false statements disparaging another person’s property or business. But, in any event, as with his RICO claim, Trump must first clear the statute of limitations.

Florida applies a two-year statute of limitation for defamation-like claims, meaning any injurious falsehoods made before March 2020 would be time-barred. In this case, while Trump highlights many false accusations, they nearly all date to 2018 or before. The one exception appears to be Clinton’s June 2021 appearance on the “Morning Joe” show on MSNBC when she declared, “We don’t have Trump as a spokesperson for Putin, anymore,” adding “after the disastrous Trump presidency, in which he gave Putin a green light to do whatever he wanted to don, once Trump was elected, of course.”

It seems unlikely the court will view these statements as sufficient to qualify as a falsehood likely to induce others not to deal with Trump, and thus this claim is likely to fail as well. The conspiracy claim in Count IV is likely to also fail because the alleged injurious falsehoods fall outside the statute of limitations.

3. Malicious Prosecution and Conspiracy to Commit Malicious Prosecution

In Count V Trump sues Sussman, Elias, Danchenko, Fritsch, Simpson, Nellie Ohr, Steele, Joffe, and DOJ and FBI agents James Comey, Andrew McCabe, Peter Strozk, Lisa Page, and Kevin Clinesmith for malicious prosecution, with Count VI adding additional defendants and alleging they conspired to maliciously prosecute Trump.

To prevail in a malicious prosecution case, a plaintiff must typically establish six elements: “(1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) thee was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendants; and (6) the plaintiff suffered damages as a result of the original proceeding.”

In this case, although the defendants allegedly caused the Mueller investigation into Trump, no judicial proceedings were instituted against the former president. Accordingly, his malicious prosecution claim seems doomed.

Trump also alleged a conspiracy to commit malicious prosecution, adding in Clinton, Podesta, Mook, Resines, and others. To recover for a civil conspiracy, a plaintiff must show an agreement between two or more parties to do an unlawful act or a lawful act by unlawful means, doing some overt act in pursuance of the conspiracy and damage to the plaintiff as a result. However, because there was no institution of criminal proceedings, this claim will fare no better.

4. Computer Fraud Abuse Act and the Stored Communications Act

Trump added claims in his complaint under the Computer Fraud and Abuse Act (CFAA) in Count VII against Neustar, Joffe, the DNC, the Clinton campaign, Clinton, Perkins Coie, and Sussmann, and under the Stored Communications Act (SCA) in Count IX against Neustar and Joffe.

The CFAA provides that “whoever . . . intentionally accesses a computer without authorization or excessed authorized access, and thereby obtains . . .information from any protected computer’ violates the CFAA.” A person injured by that unauthorized access may file a civil suit under the CFAA, but must have suffered a loss of at least $5,000, or meet other statutory requirements.

Similarly, the SCA makes it unlawful to “intentionally access[] without authorization a facility through which an electronic communication service is provided” and thereby obtain “access to a wire or electronic communication while it is in electronic storage.” Under the SCA, in addition to a defendant exceeding his authorized access, the electronic communications must be in “electronic storage.” The statutory meaning of “electronic storage” is quite narrow, applying only to electronic communications in the “middle of transmission” or “saved for backup purposes.”

Both Trump’s Computer Fraud and Abuse Act and Stored Communications Act charges face a serious hurdle in the Supreme Court’s recent holding in Van Buren, wherein the high court held that the CFAA’s term “exceeds authorized access” means “an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.”

According to the Supreme Court, “the CFAA . . . does not target those who misappropriate confidential information or trade secrets they were authorized to learn about, read, or otherwise obtain, or those who misappropriate computer files they were perfectly authorized to open, view, or otherwise access.”

Following Van Buren, lower courts have interpreted the SCA’s “without authorization” language consistent with that case. This means for Trump’s civil suit to succeed, the defendants must have accessed protected computers or electronic storage that they were not legitimately provided access to. The question the court will need to decide, then, is whether Trump’s allegations are sufficient to support the possibility that Joffe accessed computer information or electronic storage (as defined by the statute) that he had no authority to access. If, instead, Joffe had the authority to access the data he allegedly used to craft the Alfa Bank and Yota cell phone hoaxes, there is no violation of the CFAA or the SCA under Van Buren.

In his complaint, Trump alleged the defendants “hacked” the computers, which might be considered sufficient, although it is questionable whether Joffe accessed computer systems without authority. This question will likely be the main focus of this case moving forward.

If the court finds Trump sufficiently alleged violations of the CFAA and the SCA, the claims will likely survive the statute of limitations challenges because those statutes provide a lawsuit may be filed within “two years from the date the claimant first discovered or had a reasonable opportunity to discover the violation.” This statutory language differs from the other governing statutes of limitation, which begin running at the time of injury. Here, the clock does not start ticking until Trump discovered the alleged violation. And in this case, Trump only learned of the alleged violations by Joffe within the last year, following the indictment of Sussmann.

5. Theft of Trade Secrets Act

In Count VII, Trump sued Neustar, Joffe, Perkins Coie, Sussmann, the Clinton campaign, the DNC, and Clinton personally alleging they violated the federal Theft of Trade Secrets Act. Neustar and Joffe, Trump alleged, illegally obtained Trump’s confidential records in the form of the Domain Name System or “DNS” data that showed the computer systems Trump-related computers communicated with. The other named defendants conspired with Neustar and Joffe to misappropriate Trump’s confidential records and injure Trump, according to the complaint.

This count seeks recovery under the federal Defend Trade Secrets Act which creates “a private right of action” or the right for an individual to sue civilly under certain circumstances. But to sue under the Defend Trade Secrets Act, at a minimum a “trade secret” must be at issue.

And “confidentiality alone does not a trade secret make.” Rather, a trade secret exists if an owner “takes reasonable measures to keep the information secret,” and “the information ‘derives independent economic value, actual or potential, from not being generally known.” In other words, the “secret” information provides the owner an economic advantage.

Typical examples include formulas for Kentucky Fried Chicken or Coca-Cola, or Google algorithm, but trade secrets can also include customer lists with contacts and product and pricing information. A court is extremely unlikely to find that the DNS data allegedly mined “derives independent economic value” or otherwise constitutes a trade secret, and thus this claim will likely be tossed as well.

6. Agency and Respondeat Superior

The final counts all seek to hold the defendants responsible for the conduct of others, with Count X, entitled “Agency,” attempting to hold Clinton responsible for the conduct of those acting on her behalf, known legally as “agents.” General principles of agency law provide that if a principal directed or authorized a wrongful act, or ratifies the act after the fact, he (or in this case she), is legally liable for the conduct.

The principle of respondeat superior also finds its origins in agency law and holds that employers are vicariously liable for torts committed by employees within the scope of their employment. Vicarious liability is a form of strict liability, and the employer is liable for an employee’s wrongful conduct even if the principal did not direct or authorize the conduct and even if the employee acted without the employer’s knowledge. Under the principle of respondeat superior, once an individual is determined to be an employee, the question of concerns asks whether the employee acted within “the scope of employment” when committing the alleged tort.

In Trump’s lawsuit, in Counts XI through XVI, he seeks to hold the business entities of Perkins Coie, DNC, the Clinton campaign, Neustar, Orbis, Fusion GPS, and Orbis liable for the conduct of their respective employees based on this doctrine. However, without an underlying wrong by an employee in the first instance, there can be no respondeat superior liability. Thus, the first question is whether Trump properly alleged an employee of the above enterprises committed a wrong for which the law provides a remedy. As detailed above, most of Trump’s legal theory seems doomed, making these claims futile as well.

Next Steps

It will be some time, however, before anything substantive takes place in Trump v. Clinton. Trump will need to serve the defendants first, although before he does, it is possible that the judge randomly assigned to the case, Judge Donald Marsh Middlebrooks, will recuse from the case to avoid an appearance of bias since he is a Bill Clinton appointee. If he doesn’t recuse, it is likely Trump’s attorneys will file a motion seeking his recusal.

Following service, the defendants are likely to immediately seek dismissal of the complaint for these reasons noted above, or other reasons, but Trump will have an opportunity to amend the complaint to address any defects. Here, it is at least plausible that he will be able to tweak the case enough to keep some of his claims alive for a bit, most likely his Computer Fraud Abuse Act and Stored Communications Act claims given that it is not yet clear what data Joffe allegedly accessed.

Sadly, though, Trump may in the end join Svetlana Lokhova and Alfa Bank as victims of Spygate for whom the legal system provided no relief. There is still hope for justice for Carter Page, though.


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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