Durham challenges Clinton campaign’s attorney-client privilege claims, asks judge for review

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Special counsel John Durham is requesting a judge review attorney-client privilege over documents connected to Clinton campaign law firm Perkins Coie and other groups that could be used as evidence in the upcoming trial of the firm’s former partner, Michael Sussmann, in a 23-page filing.

Durham wants the court to order Hillary Clinton’s 2016 campaign, the Democratic National Committee, Fusion GPS, and Perkins Coie to hand over unredacted versions of withheld documents to be reviewed by a judge who will determine whether their claims of attorney-client privilege are valid, according to the Washington Examiner.

The filing was made on Wednesday by Durham ahead of the Sussmann trial. The Clinton attorney was indicted last year on charges that included hiding the fact that the Clinton campaign and “tech executive” Rodney Joffe were clients of his from FBI general counsel James Baker while pushing the false narrative of a secret backchannel between the Trump Organization and Russia’s Alfa-Bank. He is pleading not guilty to the charges.

Durham asserted that all of them “have all withheld and/or redacted documents and communications that the government otherwise might seek to admit at trial based on an apparent theory that political opposition research and/or public relations work conducted by the U.S. Investigative Firm at the behest of those entities falls within the legitimate scope of attorney-client privilege and work-product protections. They have done so despite the fact that almost all of these materials appear to lack any connection to actual or expected litigation or the provision of legal advice.”

Durham – Motion to Compel P… by Washington Examiner

Durham is now requesting that the federal court in DC “compel” the parties to produce documents “currently being withheld.” He also wants the judge to hold a private session minus the press or the public on the matter. He has “questions concerning the validity, scope, and extent of the privilege assertions.”

In the filing, the special counsel argued that Fusion GPS’ work “[does] 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 it clear that the primary purpose of the [Fusion GPS’] work related to the [Steele] dossier, the [Alfa-Bank] allegations, and the other issues was to assemble and publicize allegations that would aid the campaign’s public relations goals,” he charged.

“When [Fusion GPS] employees communicated with [Joffe], they were doing so in furtherance of collaborating and promoting the [Alfa-Bank] allegations, not facilitating legal advice,” the filing adds. “Simply put, these were communications related to political opposition research and were not made ‘in confidence for the purpose of obtaining legal advice from the lawyer.’”

Withholding of documents has purportedly happened “despite the fact that almost all of these materials appear to lack any connection to actual or expected litigation or the provision of legal advice,” according to Durham. Fusion GPS allegedly withheld 1,455 documents. Only 18 emails and attachments had anything to do with an attorney apparently, making the claim of attorney-client privilege specious.

At the heart of Durham’s assertion is that from 2016 through 2021, individuals connected to Fusion GPS, the Clinton campaign, and Perkins Coie intentionally failed to maintain requisite confidentiality over materials from the election which potentially invalidates attorney-client privilege.

According to Durham, the DNC and the Clinton campaign “have asserted attorney-client privilege and/or work product protections over communications solely between” Joffe and an individual from Fusion GPS.

Fusion GPS has previously been served with a grand jury subpoena that involved “non-privileged records” connected to Sussmann and Perkins Coie as well as correspondence related to Alfa-Bank. They were also subpoenaed for “non-privileged records” related to being retained by the DNC and the Clinton campaign.

Similar grand jury subpoenas were served to the DNC, the Clinton campaign, Perkins Coie, Joffe, and other companies. Joffe was the only one who did not comply, asserting his Fifth Amendment rights according to Durham.

The special counsel recounted that 2021 subpoenas to Perkins Coie and Fusion GPS compelled them to produce the documents listed on privilege logs. Those records were handed over in heavily redacted form.

In requesting a review by the judge, Durham claims that the documents appear to relate to Fusion GPS’s “provision of opposition research and media strategy-related services” to the Clinton campaign, the DNC, and Perkins Coie.

Sussmann – Motion to Preclu… by Washington Examiner

According to the Washington Examiner, Durham prosecutor Andrew DeFilippis commented, “We’ve been working for some time in good faith with … the asserted privilege holders.”

The prosecution intends to call witnesses from Fusion GPS and Perkins Coie, so “in the context of hashing out the appropriate scope of testimony for those witnesses, it is unavoidable that we have to consider the question of what is validly privileged.”

Sussmann lawyer Sean Berkowitz called the move by Durham “an ambush.”

“The animating theory of the Special Counsel’s Indictment is that, in meeting with the FBI and Agency-2 [the CIA], Mr. Sussmann sought to conceal that he was secretly working on behalf of the Clinton Campaign and Mr. Joffe,” Sussmann’s attorneys wrote on Tuesday according to court records. “Lacking actual evidence of Mr. Sussmann’s guilt, the Special Counsel seeks instead to convict Mr. Sussmann by insinuating to the jury that such evidence must exist — by inviting them to draw the inference that, because Mr. Sussmann’s alleged clients and co-conspirators have chosen to withhold information relating to the very same relationship the Special Counsel alleges they and Mr. Sussmann sought to conceal, that information must be inculpatory.”


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