Cases collide as the campaign and research firm Fusion GPS claims that 2016 messages with then-presidential candidate Hillary Clinton are protected by attorney-client privilege, and should be excluded from proceedings in the criminal case against Michael Sussman, who is accused of lying to the FBI.
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Back in August 2017, Fusion GPS co-founder Glenn Simpson testified to the Senate Judiciary Committee, explaining how his firm was retained to gather “lots of facts about Donald Trump.” He admitted that “Fusion GPS met with reporters leading up to the 2016 election to spread opposition research against then-candidate Trump,” Reactionary reports.
Clinton’s campaign hired the Fusion GPS to do “opposition research into then-candidate Donald Trump’s Russia ties,” reported Bloomberg.
“Now the stories have changed,” Reactionary continues, “Fusion GPS is no longer an opposition research firm, and they weren’t hired to dig-up dirt against Trump. Instead, they would have you believe, after the phony dossier and the Alfa Bank hoax, that Fusion GPS was retained to provide legal advice to the Hillary Clinton Campaign. Remarkable”.
“Fusion GPS said Tuesday in court filings the privilege applies because it had been hired by the Democratic National Committee’s law firm — Perkins Coie LLP — to help prepare a defense in case Trump sued them for defamation over their Russia claims,” Bloomberg reports.
“Fusion said it was hired because of its expertise on topics including Russia, the Kremlin, foreign interference in U.S. elections, Russian oligarchs and their relationships with Russian President Vladimir Putin, according to the filing, reported Bloomberg.
Bloomberg continued, “The filings by the campaign and Perkins Coie seek to intervene in the criminal case against DNC-linked lawyer Michael Sussmann, who is accused of lying to the FBI before it opened the Trump-Russia-probe. Special Counsel John Durham, tasked with investigating the origins of the FBI’s Trump-Russia probe, seeks to use the communications at the July trial of Sussmann. Durham has asked a judge to review the communications to determine if they are truly covered by attorney-client privilege.”
Clinton’s 2016 presidential campaign said its communications should be kept out of a related criminal case:
“The government is not entitled to obtain privileged material simply because it has filed a motion to compel,” campaign lawyer Robert Trout said in a filing. The lawyer said it would file the details of its argument under seal.
“Fusion’s messages with the DNC and the campaign may be relevant to the case because Sussmann is accused of falsely telling the FBI he wasn’t representing any client when he gave the agency information about suspected links between Trump Tower and a Russian bank a few months before the election,” Bloomberg reports.
“Durham has accused the Clinton campaign and the DNC of wrongfully withholding the communications, which were sought under a grand jury subpoena.”
Earlier this month, U.S. District Judge Christopher Cooper denied Sussman’s motion to dismiss the case, and ruled a jury would need to decide whether Sussman’s alleged lie to the FBI was material to the Russia probe.
Now there are filings from both sides, supporting and contesting the question of what constitutes “privilege” in this case. Multiple filings by the Clinton campaign may suggest a desperate desire to keep pertinent information out of the court proceedings.
One analyst, Reactionary, reports:
“We also can’t help but believe Hillary for America, Fusion GPS, Sussmann, and the rest of them will lose this fight to keep these records secret. Here’s a quick rundown of why (Durham’s motion to compel goes into more detail on the legal arguments, if you’re curious).
The actual work was political, not legal. Previous statements confirm that Fusion GPS was retained for political research, and not for ‘legal advice’ or for the purposes of litigation. Fusion was hired to perform ‘political work’ – specifically, ‘deep research on Trump.’ As Durham observed, Fusion GPS wasn’t providing legal advice when it met with Rodney Joffe or promoted the Alfa Bank allegations.”
“Fusion GPS shared its findings with the U.S. government and the press” Reactionary continues.
“The ‘privilege’ was always a pretext. In Fusion GPS’s initial meeting with Marc Elias, he said “Fusion would only be reporting to him ‘for legal’ reasons: if Fusion’s communications were with a lawyer, they would be considered privileged and kept confidential.”
Reactionary noted, “While Hillary for America, et al. make sweeping generalities about legal services Fusion GPS provided, they did not address the communications and documents that are subject to Durham’s motion to compel. The court will look at the emails/documents specifically and make his own judgment.”
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The battle is heating up, and important dates coming up in the Sussmann case are:
April 20, 2022: There will be a hearing on Sussmann’s motion in limine to preclude evidence and on his motion to exclude the government’s proposed expert witness testimony.
April 27, 2022: The court will hear the motion to compel. We expect the Court to require production – date uncertain.