Fusion GPS Challenges Durham Motion to Turn Over ‘Privileged’ Communications

Michael Sussmann in an undated interview. (CNN/Screenshot via NTD) Special counsel John Durham in 2018. (U.S. Department of Justice via AP)

Fusion GPS, the opposition research firm hired by the Clinton Campaign in 2016 to produce a dossier alleging connections between then-Presidential candidate Donald Trump and the Russian government, has petitioned to intervene in the trial of former Clinton campaign attorney Michael Sussmann.

Sussmann is set to go to trial on May 16 before United States District Judge Christopher Cooper in Washington, D.C., for making a false statement to the FBI.

Special Counsel John Durham alleges the attorney knowingly lied in claiming to be acting as “a concerned citizen” in September 2016 when he gave FBI General Counsel James Baker documents regarding alleged DNS (Domain Name System) traffic between Russia-based Alfa Bank and a server operated by a Michigan managed-care healthcare group somehow associated with the Trump Organization.

What Sussmann allegedly failed to tell Baker was he was working for Rodney Joffe, a cybersecurity expert whose firm had a contract with Executive Office of the President to monitor DNS traffic, and that Sussmann’s Washington, D.C.-based law firm, Perkins Coie, represented Hillary Clinton’s 2016 campaign committee.

Sussmann also allegedly did not reveal that the information he conveyed to Baker was gleaned, in part, from “opposition research” conducted by Fusion GPS and included hearsay allegations collected by former British intelligence officer Christopher Steele in the discredited “Steele” dossier.

Durham, in April 6 court filings, sought to compel the Democratic National Committee (DNC), the Clinton campaign, Fusion GPS, Perkins Coie, and others to provide documents and communications they’ve refused to hand over as allegedly protected by attorney-client privilege.

In his motion, Durham said of 1,455 documents withheld by Fusion GPS, only 18 emails actually involve an attorney, meaning attorney-client privilege cannot be applied.

Durham said Sussmann, Joffe, and the DNC engaged in a “joint venture” to gather and spread claims that Trump had a connection to the Russian government, allegations that tainted the Trump administration for years.

Durham’s motion maintains Fusion GPS’s work “(does) not appear to have been a necessary part of, or even related to, (Perkins Coie’s) legal advice to (the Clinton campaign) and the DNC.”

“Instead, contemporaneous communications and other evidence make it clear that the primary purpose of (Fusion GPS’s) work related to the (Steele) dossier, the (Russian bank) allegations, and the other issues was to assemble and publicize allegations that would aid the campaign’s public relations goals,” Durham’s motion reads.

In a three-page motion accompanied by 10 attached exhibits filed Tuesday, attorneys Joshua Levy, Rachel Clattenburg, and Kevin Crenny of the Washington, D.C.-based Firestone Muse LLP law firm called on Cooper to allow them to intervene on Fusion GPS’ behalf “for the limited purpose of responding” to Durham’s motion to compel with an opposition brief.

In their motion, the attorneys say Fusion GPS has been fielding document requests from Durham since the “Grand Jury subpoena almost one year ago, withholding certain documents protected by the attorney-client privilege and work product protections because they are related to its work at the direction of the law firm Perkins Coie.”

Less than six weeks before the scheduled May 16 trial, Durham in his April 6 filing for the first time “raise(s) questions concerning the validity, scope, and extent of (those) privilege assertions,” they argue.

Fusion GPS attorneys maintain Durham “fails to set forth a valid basis for its request to compel in camera inspection of these documents by this Court” and calls on Cooper to “dismiss this motion as procedurally improper for the reasons set forth in the defendant’s opposition. The Court should also dismiss the government’s eleventh-hour attempt to pierce the privilege of non-parties over documents that the government has not even attempted to show are relevant to the indictment.”

Fusion GPS’s Tuesday petition is among a flurry of filings lodged in Cooper’s court since Friday in which Durham alleged Sussmann also conveyed the same allegedly false information to the CIA on February 2017 and that five witnesses connected to the Clinton campaign have invoked their Fifth Amendment rights and will not cooperate with the investigation.

Attorneys Sean Berkowitz, Michael Bosworth, Natalie Hardwick Rao and Catherine Yao of Latham & Watkins LLP, who are representing Sussmann, in a series of same-day counter filings, called for restrictions on witness testimony and argued that notes taken by two FBI officials not be entered as evidence in the case.

In a 16-page brief filed Monday night  Sussmann’s attorneys argue that when Cooper last week rejected their motion to dismiss the case against their client, “the court observed that the battle lines in the case have been drawn. But now, less than six weeks before trial, the Special Counsel improperly and unfairly seeks to redraw the battle lines” in calling specifically for 38 documents to be provided by Fusion GPS.

Sussmann’s attorneys accuse Durham of “mounting a last-minute frontal assault on third-party assertions of attorney-client privilege and work product protection that affect what could be the production of thousands of documents, the testimony of numerous witnesses, and, most importantly, Mr. Sussmann’s fundamental defense strategy.”

The brief lays out four reasons why Cooper should deny Durham’s motion.

It “should also be denied on the independent grounds that he moved at the wrong time, in the wrong forum, using the wrong process, and seeking the wrong documents,” it maintains.

Cooper originally scheduled an April 27 hearing to determine what witnesses and evidence will be heard in Sussmann’s trial. In an order issued Tuesday, he pushed that hearing to April 20 — tomorrow.