Last Tuesday, RedState reported on two desperate filings put forth by Hillary for America and Fusion GPS. They attempted to assert attorney-client privilege over materials that John Durham’s prosecution of Michael Sussmann is seeking to get its hands on.
That left the obvious question open, though. How could Sussmann both simultaneously assert that he was acting on his own accord and not being paid by the Hillary campaign while at the same time having Hillary for America and Fusion GPS assert attorney-client privilege over their communications?
Here’s what I wrote at the time.
Besides, isn’t this an admission that Sussmann was being paid by the Clinton campaign (via proxies)? If the information between Fusion GPS, Hillary for America, and Perkins Coie (Sussmann’s employer) is supposedly covered under attorney-client privilege, that would logically mean Sussmann was lying when he said he wasn’t working for any client at the time. Obviously, making that case in court is a fair bit more difficult than typing it out here, but still, it’s illuminating.
To further complicate matters, Hillary for America entered into an agreement with the FEC to settle violations that expresses the opposite viewpoint they are now trying to argue before the judge in the Sussmann case. The Federalist’s Margot Cleveland explains in her write-up about a letter sent to Durham that pointed out that conflict.
In Friday’s letter, Backer also highlighted Hillary for America and the DNC’s commitment in their settlement agreement with the FEC to “not further contest the Commission’s finding of probable cause to believe” that the political organizations had “falsely reported their payments through Perkins Coie to Fusion GPS as being for legal services.” In contrast, in the Sussmann case, Hillary for America and the DNC “are nevertheless asserting materials generated by Fusion GPS and provided to Perkins Coie are protected by attorney-client privilege and work-product doctrine,” the letter stressed.
“The Government should not permit HFA and the DNC to adopt conflicting positions in different proceedings, depending on the federal agency against which they are litigating,” the foundation’s letter concluded, suggesting the trial court may find those breaches of the settlement agreement “material in ruling on any privilege claims.”
Do you see the issue? In one case, Hillary for America is saying: “Oh, Sussmann was just giving us legal services.” In another case, on the exact same payments, they are admitting: “Oh, Sussmann was not actually being paid for legal services.” You would think the judge overseeing Durham’s prosecution wouldn’t find that tactic very cute.
Sure enough, Durham is now springing his trap. On Saturday, he issued subpoenas before the jury to elicit open testimony on the issue of claiming attorney-client privilege.
Sussmann’s attorneys said they learned Durham had issued the trial subpoenas Tuesday and that the special counsel is “requesting the testimony of witnesses regarding the assertion of attorney-client privilege in front of the jury.” The Clinton campaign and the DNC advised Sussmann they wanted to fight ”this plainly impermissible testimony,” Sussmann’s lawyers said.
“The Special Counsel this week took the astonishing and legally inappropriate step of subpoenaing witnesses for the express purpose of having them testify to the invocation of the attorney-client privilege in front of the jury,” Sussmann’s lawyers contended in a Friday filing.
In other words, he’s about to get the relevant parties under oath and expose the contradiction. Either they are lying to the FEC in their prior agreement or they are lying in the Sussmann case.
Leslie McAdoo lays out exactly what that’s going to do.
Durham has backed Sussmann and Hillary for America into a corner. They have nowhere to go without having to admit they lied. It is clear that the work Sussmann was doing was not for legal services and that he was being paid by the Hillary campaign to dig up and spread false conspiracy theories about Donald Trump. Further, he obviously was not the only one involved between Perkins Coie, Hillary for America, and Fusion GPS.
Hopefully, this judge sees through the attempted gamesmanship here and does not allow any improper claim of privilege over materials that Durham is seeking, and once he gets them, things are going to get even more interesting.