The battle over documents and e-mails in the Michael Sussmann case just got hotter.
Back in August 2017, Fusion GPS co-founder Glenn Simpson testified to the Senate Judiciary Committee, explaining how his firm was retained to gather “lots of facts about Donald Trump.” He admitted that Fusion GPS met with reporters leading up to the 2016 election to spread opposition research against then-candidate Trump.
The context of Perkins Coie’s retention of Fusion GPS was further explained in a book co-authored by Simpson and Fusion GPS co-founder Peter Fritsch. They documented an April 20, 2016 meeting with Mark Elias (Perkins Coie partner and counsel for the DNC/Clinton Campaign), where Elias requested their services for opposition research:
Now the stories have changed.
Fusion GPS is no longer an opposition research firm, and they weren’t hired to dig-up dirt against Trump. Instead, they would have you believe, after the phony dossier and the Alfa Bank hoax, that Fusion GPS was retained to provide legal advice to the Hillary Clinton Campaign. Remarkable.
On April 6, Durham filed this motion to compel in the Michael Sussmann case, requesting the court require the production of “emails and attachments between and among” Perkins Coie, Rodney Joffe, and Fusion GPS. These emails and documents, according to Durham, “appear or involve or relate to” Fusion GPS’s provision of research and media services to Hillary for America, the DNC, and Perkins Coie. (Some documents had been produced pursuant to grand jury subpoenas dating back to the 2021.)
Faced with this pressure, today there was a flurry of filings from interested entities in the Sussmann case, seeking to intervene to petition the court to keep these emails and documents secret. The DNC, Rodney Joffe, Perkins Coie, and Hillary for America all filed motions to intervene and memorandums in opposition to Durham’s motion to compel.
Notably, we saw arguments to the court that Fusion GPS wasn’t retained for opposition research. Hillary for America, for example, asserted “attorney-client privilege and work product protection over communications and work product of its attorneys (at Perkins Coie) and their consultant (Fusion GPS).” In support of that motion, Hillary for America included declarations from John Podesta, Robby Mook, and their attorney, Marc Elias. Declarations which contradict the public record.
To prove my point, John Podesta declared that to his knowledge, Perkins Coie has “consistently maintained” confidentiality, despite the fact that Perkins Coie (Sussmann in particular) assisted in distributing to the press the materials and allegations prepared by Fusion GPS and other researchers. Compare Podesta’s declaration to Sussmann’s December 2017 testimony (h/t FoiaFan):
Not to be outdone, Robby Mook (Hillary’s campaign manager) told the court that he believed that contractors for Perkins Coie – which would include Fusion GPS – were providing “legal services and legal advice” to the Clinton campaign. Unfortunately for Hillary for America, Mook’s belief is insufficient for the purposes of privilege.
Clinton lawyer Mark Elias also submitted a declaration, stating the role of Fusion GPS was to “provide consulting services in support of the legal advice” Perkins Coie and Elias were providing their clients. This contradicts the Elias’s own statements cited above.
Fusion GPS, in its filing today, made similar arguments: “Elias retained Fusion to expressly support his legal advice . . . and the retention specifically contemplated the need for such advice for potential and ongoing litigation.” This is the pattern of Fusion GPS, which previously refused to produce correspondence in the Alfa Bank (Fridman, et al.) case.
Having already produced thousands of pages of materials requested by grand jury subpoenas, they’re all desperate to keep these remaining records secret. We can’t help but think the information is damaging. How damaging might it be? Damaging enough for this fight.
We also can’t help but believe Hillary for America, Fusion GPS, Sussmann, and the rest of them will lose this fight to keep these records secret. Here’s a quick rundown of why (Durham’s motion to compel goes into more detail on the legal arguments, if you’re curious) Durham will likely get these documents and e-mails:
- The actual work was political, not legal. Previous statements confirm that Fusion GPS was retained for political research, and not for “legal advice” or for the purposes of litigation. Fusion was hired to perform “political work” – specifically, “deep research on Trump.” As Simpson and Fritsch wrote, Elias “loved” the Trump/Russia narrative and “Fusion’s research team would soon be hired and given wide latitude to go where the story led it.” As Durham observed, Fusion GPS wasn’t providing legal advice when it met with Rodney Joffe or promoted the Alfa Bank allegations.
- Fusion GPS shared its findings with the U.S. government and the press (related to #1). I won’t provide all contacts, but will summarize some briefly. Christopher Steele met with the FBI in July 2016, and continued his contacts with them until he was terminated as a source for his contacts with David Corn. The FBI would later use Bruce Ohr as a conduit to Steele. Fusion GPS would meet with reporters leading up to the 2016 election and pressure newsrooms and reporters to publish the Alfa Bank hoax. Likewise, Sussmann would provide the Fusion GPS opposition research to reporters.
- The “privilege” was always a pretext. In Fusion GPS’s initial meeting with Marc Elias, he said “Fusion would only be reporting to him” for “legal reasons: if Fusion’s communications were with a lawyer, they would be considered privileged and kept confidential.” Elias then structured the retention agreement with Fusion GPS to be for “legal advice” – despite their conversation that Fusion GPS would be conducting opposition research. Or are we to believe that the mighty Marc Elias needs legal advice from Glenn Simpson and Christopher Steele?
- While Hillary for America, et al. make sweeping generalities about legal services Fusion GPS provided, they did not address the communications and documents that are subject to Durham’s motion to compel. The court will look at the emails/documents specifically and make his own judgment.
Finally, keep in mind there are some important dates coming up in the Sussmann case:
April 20, 2022: There will be a hearing on Sussmann’s motion in limine to preclude evidence and on his motion to exclude the government’s proposed expert witness testimony.
April 27, 2022: The court will hear the motion to compel. We expect the Court to require production – date uncertain.