Posted BY: Cristina Laila
Techno Fog on SubStack:
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:
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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 litigation.” 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” such as the crime-fraud exception. (Communications are not considered privilege 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.
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.
Click here to read Techno Fog’s full report on SubStack.
Fusion GPS lost its fight to keep many of its "privileged" emails from Special Counsel John Durham.— Techno Fog (@Techno_Fog) May 12, 2022
This is bad news for Fusion – they'll likely lose the fight to keep over 1,500 remaining documents from Durham. https://t.co/rTSGp7WRRR