by Techno Fog
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:
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.
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.
1I’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.
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:
