It is always good to have a “lawyer acquaintance” when things get tough. In “A Streetcar Named Desire,” the character Stanley Kowalski famously assures to Blanche DuBois that he has “a lawyer acquaintance” who will protect her. The same appears to be true for the Hillary Clinton campaign and the DNC. Special Counsel John Durham is fighting to get access to evidence related to his prosecution of former Clinton campaign lawyer Michael Sussmann. The documents are being withheld by the Clinton campaign, the Democratic National Committee (DNC), Fusion GPS, and Perkins Coie. There are 1,455 withheld documents, but only 18 reportedly involved a lawyer. However, they are arguing that their “lawyer acquaintances” shield their communications from disclosure to the Special Counsel.
Sussmann’s defense recently took a body blow from Durham after the Special Counsel revealed that Sussmann did not just conceal the role of the Clinton campaign in pushing a debunked Russian collusion allegation but put that same alleged lie into writing. In both a text message and the later meeting, Sussmann is accused of lying about not representing any client despite billing the time to the campaign.
Sussmann faces a single charge under 18 U.S.C. 1001 for lying to the FBI in a meeting with the then-FBI General Counsel James Baker.
In the indictment, Sussmann is accused of “mak[ing] a materially false, fictitious, and fraudulent statement or representation” in conversations with Baker. Durham argued that “the defendant provided the FBI General Counsel with purported data and ‘white papers’ that allegedly demonstrated a covert communications channel between the Trump Organization and a Russia-based bank.”
That institution was Alfa Bank and Sussmann’s effort paralleled the work of his partner at the law firm Perkins Coie, Marc Elias, in pushing the Steele Dossier in a separate debunked collusion claim. The Federal Election Commission recently fined the Clinton Campaign and the DNC for hiding the funding of the dossier as a legal cost by Elias at Perkins Coie.
The Clinton Campaign’s Alfa Bank conspiracy was found to be baseless but the FBI did not know that it was being offered by someone being paid by the campaign to spread the claim. Had they known, Durham alleges the department might have been able to avoid the investigation costs and effort spent on the Alfa matter.
Durham told the court that these sources (and tech executive Rodney Joffe) have refused to turn over documents as protected by attorney-client or work product privilege. Durham can use the crime/fraud exception to compel disclosure but he is first asking the court to review the documents in camera.
Attorney-client privilege is generally raised by clients but can be raised in some circumstances by third parties under some circumstances. However, the exchange must be “for the purpose of obtaining legal advice from the lawyer.” Likewise, the work product doctrine protects documents that were “prepared in anticipation of litigation or for trial” by third parties on behalf of the client.
What is interesting about this fight is that the Clinton campaign is accused of using Perkins Coie and both Sussmann and Elias to conceal its secret campaign to push the Russian collusion story. The FEC recently fined the Democratic National Committee and Hillary Clinton’s 2016 campaign for violating election rules in hiding that funding as legal costs.
Now the campaign and Perkins Coie are using attorney-client privilege to withhold evidence in a case where the former partner is accused of using his status of counsel to conceal information from the government.
Recently, the media celebrated the decision of a judge to compel the disclosure of alleged attorney-client material to Congress related to the January 6th riot. Yet, there has been comparably little coverage of this fight despite striking similarities on the underlying claims.
Judge David O. Carter in the U.S. District Court for the Central District of California used the crime/fraud exception to order the release of material claimed as privileged by John Eastman, who advised former President Donald Trump on opposing the certification of the election.
Judge Carter was praised for his “simple clarity” in declaring that “it is more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”
At the time, I wrote that people need to “consider the implications of Carter’s opinion . . . there is no clear limiting principle of when a legal opinion becomes a criminal conspiracy beyond the court’s predisposition of the meaning of these facts.”
In this case, you have third parties raising privilege arguments in refusing to allow Durham to see what was discussed in the effort to push the false Russian collusion claims. Durham argues:
“Many, if not most, of the actions taken by the employees of [Fusion GPS] thereafter do not appear to have been a necessary part of, or even related to, [Perkins Coie’s] legal advice to HFA and the DNC. Instead, contemporaneous communications and other evidence make clear that the primary purpose of the [Fusion GPS’] work relating to the U.K. Person-1 dossier, the [Alfa Bank] allegations, and other issues was to assemble and publicize allegations that would aid the campaign’s public relations goals.”
Notably, Durham also argues that any privileges, if they existed at all, were waived by the public statements of these parties. The filing cites the publication of a book and other public statements, including disclosures where “the authors appear to expressly suggest that [Perkins Coie] purposefully structured the [Fusion GPS] relationship with [Perkins Coie] to maintain confidentiality over their work.”
Those documents could shed new light on the efforts, and individuals, involved in this effort by the Clinton campaign to secretly fund and spread the Russian collusion story.
The filing not only raises serious questions about the professional position of Perkins Coie and its former counsel. It also raises questions about the position of journalists cooperating in this effort. One such reporter is depicted as eagerly pursuing any allegations against Trump despite the lack of proof of authenticity. In one exchange, a figure at Fusion GPS tells the reporter “do the [expletive] [Alfa Bank] secret comms story. It’s hugely important.”
Many did in reporting on the Steele Dossier and Alfa Bank allegations despite the lack of proof. After all, running these claims was “hugely important” and there was no reason worry: Fusion GPS and the Clinton Campaign have a lot of “lawyer acquaintances.”
Here is the motion: Durham Motion