Special Counsel John Durham just filed this motion in response to the efforts of Hillary for America, Fusion GPS, et al. to keep secret (by use of the attorney-client and work product privileges) communications involving Fusion GPS. You can read it here.
Durham states the “purported privilege holders who have intervened do so in a case in which the defendant has denied representing any client when he brought the Russian Bank-1 allegations to the FBI.” The privilege controversy thus entrapped Sussmann to a certain extent. Brilliant.
Additionally, Durham casts doubt on the declaration of Marc Elias that Fusion GPS was retained to provide “legal advice.” Here he makes a key point:
”if rendering such advice was truly the intended purpose of Fusion GPS’s retention, one would also expect the investigative firm to seek permission and/or guidance from [Hillary for America] or its counsel before sharing such derogatory materials with the media or otherwise placing them into the public domain.”
In support of that point, Durham states he is in possession of “hundreds of emails in which Fusion GPS employees shared raw, unverified, and uncorroborated information – including their own draft research and work product – with reporters.” (He even filed them under seal with the court.) These include:
- Emails with Slate’s Franklin Foer from May 14, 2016 in which Fusion GPS conveys information on a Trump advisor and Alfa Bank.
- July 26, 2016 e-mails from Fusion GPS to the Wall Street Journal communicating allegations from Christopher Steele stating “a Trump advisor meeting with a former KGB official close to Putin … would be huge news.”
- July 29 and July 31, 2016 emails with a reporter (Washington Post’s Tom Hamburger) concerning Carter Page’s investments and meetings with Russians – of which the reporter said “Its bullshit.”
- July 27, 2016 e-mails between an ABC News reporter (Matthew Mosk) and Fusion GPS concerning Sergei Millian. Fusion GPS responded with a “comprehensive report” regarding Millian.
- Fusion GPS communications with NY Times reporters pushing more dirt on Millian.
- This e-mail from a Fusion GPS co-founder to the New York Times – dated October 31, 2016 – pushing the Alfa Bank allegations and stating the US Government is investigating.
Here are e-mails between Franklin Foer and Fusion GPS, in which they discuss going after Carter Page in May 2016.
Fusion GPS and Franklin Foer e-mails – in which Fusion GPS alleges Millian is “clearly KGB.”
Fusion GPS telling a WSJ reporter to call Adam Schiff or Diane Feinstein about Carter Page.
As Durham makes clear, no lawyers are copied in these e-mails and this doesn’t have anything to do with legal advice. And even if there were some type of privilege or work product, it was waived when Fusion GPS distributed the info to the press.
There are a number of other important observations. The Fusion GPS witness who will testify is the “tech maven” referenced in their e-mails with the New York Times. This appears to be confirmation that Laura Seago will be the Fusion GPS employee to testify.
Here’s more on the Fusion Witness:
Durham also destroys the declarations of John Podesta and Robby Mook on behalf of Hillary for America, stating Mook has stated Perkins Coie was to handle and oversee “international” opposition research. Mook also received “general updates concerning” these findings though he says he was unaware who had been specifically retained.
As to Joffe’s privilege arguments? They fail because “Perkins Coie hired Fusion GPS to assist HFA and the DNC, not [Joffe].”
Today’s filing follows a series of interesting developments disclosed in these last few days. On Friday, April 22, attorneys for Michael Sussmann filed this motion relating to evidentiary issues. I’ll spare you the long and boring legal arguments (your humble author favors brevity) and get to the good stuff: the Special Counsel has issued trial subpoenas to the Clinton Campaign and the Democratic National Committee.
The reason for calling the Clinton Campaign and DNC as trial witnesses is to get them to testify to their assertion of attorney-client privilege under oath. As you might recall, the Clinton Campaign, the DNC, Fusion GPS, Perkins Coie, and Rodney Joffe have all made appearances in this case in order to fight against the production of records to Durham. We reported on that story here, stating Durham requested the court require production of records that included “emails and attachments between and among” Perkins Coie, Rodney Joffe, and Fusion GPS.”
On behalf of the Clinton Campaign, Robby Mook (Hillary’s campaign manager) and John Podesta (the Clinton Campaign chair, who has already been interviewed by Durham) submitted declarations in support of the position that Fusion GPS was assisting with “legal services and legal advice to [Hillary for America].”
One would rightly assume, then, that those trial subpoenas were issued to Robby Mook and John Podesta.
Last Friday also saw this filing by Special Counsel Durham which also addressed evidentiary issues. It explained a “joint venture” starting in June 2016 by Rodney Joffe and his team of researchers to collect derogatory information on Trump and his associates. Durham described the goal of the joint venture to be: “to gather and disseminate derogatory non-public information regarding the internet activities of [Trump] and his associates.
This “joint venture” – what is also called a conspiracy – continued into August 2016, where:
Sussmann, Rodney Joffe, and “agents of the Clinton Campaign” met at the Perkins Coie office of Mark Elias where they discussed the same Alfa Bank allegations that Sussmann would give to the FBI. “The evidence will show that at the meeting, the parties agreed to conduct work in the hope that it would benefit the Clinton Campaign, namely, gathering and disseminating purportedly derogatory data regarding Trump and his associates’ internet activities.”
In furtherance of this scheme, Durham states the evidence (much of which is already public) will show:
- An August 12, 2016 meeting with a co-founder of Fusion GPS (Steele or Fritsch) with Sussmann, Elias, and Rodney Joffe. This meeting was billed to the Clinton Campaign.
- Joffe enlisted the CEO of an internet company to “mine and analyze vast amount of Internet traffic for any derogatory information he and his employees could find about Trump and his associates’ internet connections and online communications.” This included those already targeted by Fusion GPS.
- Joffe’s coordination with his team of researchers (including those at Georgia Tech – one of whom has immunity) to compile what is now known as the Alfa Bank hoax.
- Joffe’s continued meetings with Fusion GPS and Perkins Coie, in which he made clear his desire to make sure the “VIPs” at Perkins Coie and the Clinton Campaign would be “happy” with the project.
One final observation: DARPA and confidential data.
The Sussmann indictment mentions “non-public Internet data” that was exploited by Joffe, et al, for the purposes of their political hit-job. This information was provided to Georgia Tech as part of a prospective contract with DARPA to “identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” (More details here.) After the indictment, it was revealed that Durham’s team has interviewed former DARPA employees.
Based on this information, we hinted that “there might be charges relating to the misuse of classified government data from DARPA.”
We now have confirmation that this contract included classified information.
Take a look at this e-mail (obtained by Twitter sleuth UndeadFOIA) in which Andrew DeFelippis, who is part of Special Counsel Durham’s team, in which he states that “DARPA has no objections to Georgia Tech’s provision of any records or information (both classified and unclassified) to our team and to the grand jury.”
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