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The fight over “privileged” Fusion GPS e-mails

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We have the transcript to yesterday’s hearing in the Michael Sussmann case, where the judge heard argument relating to the privilege dispute over the following:

  1. Documents involving Fusion GPS’s provision of opposition research and media-related strategies to Hillary for America, the DNC, and Perkins Coie. This includes the Fusion GPS/Perkins Coie contract and 38 e-mails and attachments between and among Fusion GPS, Rodney Joffe, and Perkins Coie.
  2. Communications between Fusion GPS and Rodney Joffe relating to the Alfa Bank allegations, and “other emails that precede, and appear to relate to, those communications.” This include emails between Joffe and Laura Seago, whom Durham has subpoenaed as a trial witness.

Hillary for America (or what we might call the Clinton campaign), the DNC, Rodney Joffe, Perkins Coie, and Fusion GPS have all been involved in this privilege fight, submitting declarations in support of their motions against Durham’s access to these documents/e-mails. Here we discussed the Clinton Campaign’s dubious assertion that Fusion GPS was providing “legal advice” to the campaign’s lawyers, Perkins Coie.

We’ve been confident that Durham would win this fight, especially in light of newly-available FEC General Counsel Reports which concluded “there is no evidence that Fusion provided services other than this opposition research.”

Yesterday’s hearing only seems to confirm that Durham will get these records – to an extent (more on that “extent” below). As we updated on Twitter, the Court granted Durham’s motion to compel production of documents for in camera review (meaning review by the judge). The purpose of this step is so the judge can determine whether the attorney-client privilege and/or the work product protections apply to these documents and communications.

The key part of the Clinton Campaign’s “privilege” argument is that Fusion GPS was providing “legal support” or “legal advice” to their attorneys at Perkins Coie. For the 38 e-mails in question, the judge asked the Clinton Campaign lawyer about whether those e-mails might support that theory. (This is important because the judge will look at these e-mails individually – and because the judge recognized that “opposition research . . . does not, under the case law, fall within the attorney-client or work product privileges.”) The Clinton Campaign lawyer response to that question was a damning “I don’t”:

The transcript also sheds light on the content of the e-mails – or at a minimum, the subject matter of the e-mails. All 38 e-mails relate to the Alfa Bank allegations. 30 of those are “internal Fusion emails” and 8 are correspondence involving Rodney Joffe.

The judge also pressed the Hillary for America attorney about the broader Fusion GPS role in “media relations”:

The transcript also provides additional info on Fusion GPS witness Laura Seago, who was in meetings with Sussmann and Joffe and has been granted immunity to testify. She will speak on the following topics.

Another issue the court faced yesterday was the fact that there are more e-mails the Special Counsel might want to access. While the Sussmann case involves a dispute over 38 e-mails, Fusion has asserted privilege over some “1,500 documents” at the direction of “the privilege-holder’s counsel” (either Hillary for America or Rodney Joffe, or both). If the court grants access, that could open up access to the other e-mails. The court asked whether Durham’s team would come back for the other 1,500 e-mails. They responded in the negative – with a curious “not for this trial” – and stated the court’s decision would be “important for other investigations.”

Near the end of the hearing, the judge granted Durham’s request for an in camera review of the 38 emails. In doing so, he observed “there is a distinction between hiring a public relations firm to provide fact-checking or consulting on litigation risk and the affirmative creation and dissemination of research about an opposing candidate or business, for that matter.”

I mentioned that Durham will get these records “to an extent.”

We believe he’ll likely get the 30 the Clinton Campaign was fighting to keep secret. As to the rest? The judge was “dubious” about Durham’s argument that the 8 e-mails regarding Rodney Joffe weren’t privileged, seemingly buying the argument from Joffe’s counsel that “as Mr. Joffe understood, Fusion was a third party that was hired by his counsel to supply resources and expertise that were essential to the legal advice that Mr. Joffe was seeking from Mr. Sussmann on an extremely complex and sensitive matter.”

Now it’s a question of whether those 8 Joffe e-mails change the court’s mind. With Joffe’s participation in orchestrating the Alfa Bank hoax, it’s entirely possible. Here is a link to the transcript.

 


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