Posted on 05/13/2022 3:56:55 PM PDT by blam
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:
1.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.
2.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.1
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.
For those interested: 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:
Drip, drip, drip...
Lock them and H->! up.
Excellent, The wheels of justice move slowly. Durham I believe is a serious prosecutor. Man I hope he nails these goons!
They won’t turn over a damn thing. They’re caught red handed and they know it. They should send Hilary Clinton their legal bills.
Democratic Party the most corrupt and arrogant pieces of shit this nation has ever ever seen. Think of how much wasted time and money we have spent cleaning up their shit. Hillary Clinton rot in prison with Joe Biden. Durham be merciless because someone needs to destroy this white trash.
Do you ever wonder what Valerie Jarrett is doing (still) at the Obama house in DC?
Wow wow so Barry is into ménage a Trois? Sure oh my God Michelle and Val did I just stumbled onto something.
This is not good news for Durham. Even though the Judge said 22 of the 38 emails are not client-attorney privilege, he can’t use them because Durham waited too long to file contempt charge and it’s too close to the trial. The Judge ruled ...”Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel’s office waited too long to file its motion to compel. “As a matter of principle,” the court explained, it would not “put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date. Accordingly, the court held, “the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege.”
Given that the special counsel was forced to provide Seago, fusion employee, with immunity to obtain her testimony at Sussmann’s trial, the court’s ruling yesterday represents a setback to Durham’s case.
Sussman will get a slap on the hands.
It worked, and the country has never been the same since.
Sir, you are 100% right. 1992 the world changed in the United States and it hasn’t been for the good. Arkansas pond scum he’s as bad as she is.
Exactly, this what Durham is up against. This is big because the judge now knows what FGPS was doing and how they tried to pull a fast one.
Times change. You can't make correspondence fit in Sandy Bergers socks and walk right out of the building anymore. Exactly why Bill has always refused to use emails, messaging, or cell phones. He knows better. Hillary still thinks she can steal and lie with impunity. To some extent she has been only due to the willingness of others to cover for her. Most of that loyalty has been lost over the past 20 years though.
Times change. You can’t make correspondence fit in Sandy Bergers socks and walk right out of the building anymore.
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The heck you can’t. If your name is Clinton or Obama (or your are one of their toadies). you are immune to pretty much any consequence for your bad actions.
Once it goes to trail, discovery will be Karma for these people. The unraveling of the web of deceit and lies will come out, but as th judge inferred this may run up against legal timeframes. Imagine you could murder someone and a statue of limitations is in effect but don’t pay our taxes and you get evicted from the old peoples home on a 60 year charge;) The criminals have so many legal protections, We The People no longer have.
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