Special Counsel John Durham has filed a response to the effort by Michael Sussmann, Perkins Coie, Hillary for America (HFA), the Democratic National Committee (“DNC”), Fusion GPS, and Tech Executive-1 (Rodney Joffe) to claim their communications were privileged legal communications to keep them secret.
Durham has a little laugh at the beginning of this filing, noting how Sussmann has claimed he wasn’t representing anyone when he went to the FBI — the very thing he is charged with lying about — so that these efforts have trapped him (and them), as we have previously pointed out here and here.
Durham also derides the claim that Fusion was hired for legal work — calling that a “novel” way to cover up opposition research and the derogatory information that they then spread against President Donald Trump and his team. He says that despite efforts, the parties have failed to provide “meaningful, substantive explanations to support these continuing broad assertions of privilege and/or work product protections.” But because Durham intends to call a Fusion GPS employee as a witness in the trial (to presumably speak to the communications), he says this is why they need to resolve the question at this point as to the communications and whether they are privileged. The fact that he has a Fusion employee that’s going to flip on them is not good for Fusion or the Hillary team because she will likely lay out more of the plot publicly and that’s not going to go well for them.
Durham has some incredulity at the claim of HFA General Counsel Marc Elias that “Fusion’s role was to provide consulting services in support of . . . legal advice . . . related to defamation, libel and similar laws,” given that that that “role” seems to have been to spread derogatory (and possibly defamatory) information about Trump and his team.
Indeed, the documents produced by Fusion GPS to date reflect hundreds of emails in which Fusion GPS employees shared raw, unverified, and uncorroborated information – including their own draft research and work product – with reporters. And they appear to have done so as part of a (largely successful) effort to trigger negative news stories about one the Presidential candidates.
“Hundreds of emails” — so Durham has the whole plot to spread Russia collusion laid out in the emails.
Here are some of the emails they have, as lawyer TechnoFog lays out on his substack.
- 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.
Guess who’s named in the emails? Rep. Adam Schiff (D-CA) and Sen. Dianne Feinstein (D-CA). Why are they being referenced in July 2016 and what further communications were there, if any?
Hey @AdamSchiff – why does Fusion GPS seem to think you have information on Carter Page in July 2016?
How many communications did you exchange with Fusion GPS personnel during 2016-17? pic.twitter.com/tCDtHXcHUS
— UndeadFOIA (@UndeadFoia) April 26, 2022
What’s funny is that Durham only wanted to enter a limited amount in camera (meaning in private, for the eyes of the judge). But now, because they’re fighting the emails coming out, he has to explain why they are relevant and has to lay some of them out in his filing.
No lawyers are being communicated with for legal advice on these emails and even had any of this been privileged, as TechnoFog observes, they’ve likely blown that claim since they’re disseminating this information to the media. Durham notes in the filing that Fusion did not treat these communications as privileged themselves. Durham also notes that neither campaign chair John Podesta nor campaign manager Robby Mook provided any examples of legal advice provided in their affidavits regarding the matter and that Mook failed to provide any examples when they interviewed him.
You’ve got to love that these Clinton folks are being put on the spot about the plot and they better have answered up truthfully or we’ll be seeing more cases like that of Sussmann. Their claims are ridiculous and I would suspect the judge is going to go with the government on this. But how silly of them in the meantime to do this, so now even more information is going to come out.
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