Why Would Fusion GPS's Simpson Invoke the First Amendment?

Why Would Fusion GPS's Simpson Invoke the First Amendment?
Fusion GPS co-founder Glenn Simpson in the Rayburn Office Building on Capitol Hill, where he testified before the House Judiciary and Oversight Committee on Oct. 16, 2018. (Zach Gibson/Getty Images)
Jeff Carlson
Fusion GPS co-founder Glenn Simpson reportedly invoked his Fifth Amendment right against self-incrimination during a closed-door interview on Oct. 16, after being subpoenaed by a joint House panel. What might be overlooked is that Simpson also invoked his First Amendment right to freedom of speech and freedom of association.
Fusion GPS, the firm that commissioned the dossier produced by former MI6 agent Christopher Steele, also employed Nellie Ohr, the wife of former Associate Deputy Attorney General Bruce Ohr.
There are some obvious reasons why Simpson might plead the Fifth.
Bruce Ohr recently testified during congressional testimony that he met with Simpson prior to the FBI obtaining a FISA warrant on Trump campaign adviser Carter Page. At the time, Ohr was the fourth-highest ranking official at the Justice Department (DOJ) and was the director of the Organized Crime Drug Enforcement Task Forces. Ohr also was communicating on an ongoing basis with Steele.
Of importance is that Simpson previously told Congress he had no contact with Ohr until after Thanksgiving 2016—and the presidential election. This fact was highlighted by Rep. John Ratcliffe (R-Texas), in an interview with Fox News’ Maria Bartiromo:
"Simpson had previously testified under oath to the House Intelligence Committee that he never met with Bruce Ohr or discussed with Bruce Ohr the Steele dossier prior to the October FISA application in 2016 or the 2016 presidential election. That is in direct contradiction to what Bruce Ohr told me under oath last month," Ratcliffe said.
Ohr's assertion appears to be backed up in documents turned over to Congress by the DOJ. On Aug. 22, 2016, Ohr received an email from Simpson asking, "Can u ring." Ohr’s contact log lists some type of interaction with Simpson that day.
Steele had finished a new dossier installment that referenced former Trump campaign chairman Paul Manafort on Aug. 22, 2016.
The Fifth Amendment provides certain levels of protection against self-incrimination. It doesn't, however, protect an individual from testimony concerning other individuals.
This distinction was noted by Rep. Mark Meadows (R-N.C.), who told reporters, "Glenn Simpson has to have a reasonable apprehension of criminal prosecution to validly invoke the Fifth. If not, you can’t just invoke the Fifth to avoid answering congressional questions.”
The distinction provided by Meadows is notable and worthy of an answer. It also brings us to Simpson's unusual legal stance of invoking the First Amendment. Simpson's intent was stated in an Oct. 11 letter from his attorney to Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee:
"Mr. Simpson, whose testimony is a matter of public record, will not be participating in a confidential deposition before this Committee. He will instead invoke his constitutional rights not to testify under the First and Fifth Amendments of the Constitution."
The letter cited two cases from 1955 that relate to congressional investigations of communist political activities. First Amendment protection from congressional power to investigate and punish for contempt has proven to be a murky area with little in the way of clear answers. The Supreme Court touched on this in Barenblatt v. United States:
“Undeniably, the First Amendment in some circumstances protects an individual from being compelled to disclose his associational relationships. However, the protections of the First Amendment,... do not afford a witness the right to resist inquiry in all circumstances.
“Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.”
This wasn't the first time that Simpson invoked his First Amendment right. He also did so during his Nov. 8, 2017, interview before the House Intelligence Committee, as negotiated by his lawyer, Joshua Levy:
Rep. Trey Gowdy (R-S.C.): Which privileges, in particular, are you concerned about?
Joshua Levy: Constitutional and common law privileges, First Amendment, Fifth Amendment, attorney work product doctrine.
Levy noted these privileges had previously been afforded by other committees. This included Simpson's Aug. 22, 2017, appearance before the Senate Judiciary Committee in which Sen. Chuck Grassley (R-Iowa) had granted Simpson's request. Levy's demand for First Amendment privilege took committee members by surprise, including Gowdy, who pressed Simpson's attorney on the matter:
Gowdy: I have a vague familiarity with the Fifth Amendment. What is the First Amendment privilege?
Levy: There is a First Amendment privilege to free association and free speech.
Gowdy: I agree with both of those. How would they limit your client's ability to answer questions?
Gowdy's sentiments were echoed by Rep. Mike Conaway (R-Texas), who noted, "I don't have a clue why your First Amendment rights are at risk from this committee."
Levy hinted at what was at stake:
"Well, they wouldn't if the committee agreed that nothing he said would interfere with his ability or the company's ability to assert that privilege going forward in the investigation as to requests for documents or to other testimony sought by this committee from Mr. Simpson or any other individual at Fusion GPS."
Rep. Adam Schiff (D-Calif.) clarified Simpson's reasoning for invoking the First Amendment, noting that topics relating to the Russia investigation were probably fine. Other areas of investigation, including "finding out about other clients who are unrelated to this investigation or other op research they've done" were out of bounds.
Ultimately, an agreement was reached, leading to Simpson's full interview on Nov. 14, 2017, before the House Intelligence Committee.
The issue of First Amendment protection first arose during negotiations between Simpson's lawyer and Grassley, in preparation for Simpson's Senate Judiciary testimony on Aug. 22, 2017. In a series of back-and-forth letters, Simpson's lawyer repeatedly sought protection and preservation of First Amendment rights:
“Fusion GPS worked with and for its clients in furtherance of its clients’ First Amendment rights to engage in political activity and political speech, to speak anonymously, to associate freely with others and to petition their government.”
Levy then brought us to the heart of the matter:
“You have requested that Fusion GPS reveal the names of any clients that had retained the company for the purpose of performing opposition research on a major political party candidate for president. You likewise have requested that Fusion GPS disclose all of its internal communications regarding any such opposition research.
"Requiring Fusion GPS to produce the requested information and materials would chill the exercise of Fusion GPS’ and its clients’ First Amendment rights; thus, a compulsory process is not warranted here for the information and material now being requested.”
An agreement was ultimately reached between Grassley and Simpson's attorney that allowed for Simpson to be interviewed by the Senate Judiciary Committee in August, without waiving First and Fifth Amendment privileges that protected Fusion GPS and the identity of its clients in future litigation.
Simpson has consistently attempted to cloak his clients under the protection of the First Amendment.
Which raises several questions: Did other clients or participants remain unnamed? What activities were these clients engaging in? And where might these clients lead investigators?
Simpson's invocation of the Fifth and First amendments goes beyond self-incrimination.
Jeff Carlson is a CFA charterholder. He worked for 20 years as an analyst and portfolio manager in the high-yield bond market. He runs the website TheMarketsWork.com
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.