Fusion GPS Loses Its Fight Over “Privileged” Documents

Fusion GPS Loses Its Fight Over “Privileged” Documents


Fusion GPS Loses Its Fight Over “Privileged” Documents

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

By Techno Fog via The Reactionary

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

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

What Fusion GPS has to produce.

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

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

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

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

The other emails.

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

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

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

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

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

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

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

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

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

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

Here are the e-mails:

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

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

Emphasis added by (TLB) editors

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New Hearing In Sussman-Russiagate Case — Why Clinton Emails Will Come Out

New Hearing In Sussman-Russiagate Case — Why Clinton Emails Will Come Out


New Hearing In Sussman-Russiagate Case

Why the Clinton Campaign will lose the fight to keep their Emails Secret

By Techno Fog via The Reactionary

[Thursday], there was a hearing in the U.S. District Court for the District of Columbia in the matter of the United States v. Michael Sussmann, the former DNC/Clinton/Perkins Coie lawyer accused of providing false statements relating to the Alfa Bank/Trump Organization hoax to then-FBI general counsel James Baker in the fall of 2016. Here is more background on his indictment and how Sussmann and his allies passed Trump transition data to the CIA.

About the hearing – we have the transcript (link at the bottom). The hearing related to Sussmann’s efforts to dismiss the indictment, with the defense alleging that Sussmann’s alleged lies were not material.

The Court looked on that argument with skepticism. And rightly so, as the issue of materiality is typically a question for the jury. Sussmann’s lawyers did him no favors by admitting it was a “closer call” on whether the government’s arguments of materiality should be presented to the jury.

The Special Counsel’s argument on materiality was more more effective, explaining what Sussmann did and why his lies mattered:

Interestingly, the Court also asked if the underlying information – the Alfa Bank/Trump Organization data that Sussmann provided the FBI – was “false”. On that question the Special Counsel declined to show their hand.

Why does this matter? Because it has been long-suspected that the the Alfa/Trump data was manipulated, if not outright invented. Recall this discussion in the Sussmann indictment, where the researchers discussed the inability “to defend against the criticism that this is not spoofed traffic”:

Now we get to the juicy parts of the hearing. The Special Counsel is in possession of a number of documents from the Clinton Campaign, Rodney Joffe (more about him here), and Hillary for America. And there is a fight over whether some of those documents are privileged.

The Special Counsel provided one example, stating that the Clinton Campaign is putting out bogus claims of privilege over the communications of Rodney Joffe. These are likely to fail. The Clinton Campaign was not copied on the e-mails, there might very well be a crime-fraud exception to any assertion of privilege, and because Joffe wasn’t providing legal advice to Hillary.

Fusion GPS is making similar claims of privilege to keep their documents secret.

They’ve tried these types of abuses of “privilege” in a civil case, and we previously discussed why those efforts were bound to fail, perhaps most notably because Fusion GPS has admitted they were doing political work not subject to privilege. Fusion GPS cannot now claim they were performing legal or litigation-focused work.

Moreover, even if this were legal work, Fusion GPS waived privilege when leaking their research to the media, government officials, and other third parties. Oops.

Finally – here is the transcript. Happy reading.

-Techno

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Header featured image (edited) credit: Hillary/POLITICO Illustration/Getty

Edited and emphasis added by (TLB) editors

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

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

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

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