Will The Court Allow Special Counsel John Durham To See Clinton Campaign Documents?

Late Wednesday, Special Counsel John Durham filed a motion to compel the 2016 Hillary Clinton campaign, the Democratic National Committee, Fusion GPS, and Perkins Coie to provide the judge presiding over the Michael Sussmann criminal case copies of unredacted documents previously withheld from the government. The Clinton campaign and DNC have claimed the withheld or redacted documents are protected by attorney-client privilege.

Here’s what you need to know about yesterday’s filing.

First, the Background

Durham charged former Clinton campaign attorney Sussmann in September of last year in a one-count criminal indictment, alleging Sussmann lied to former FBI General Counsel James Baker when Sussmann shared data and white papers purporting to connect Trump to the Russia-based Alfa Bank. Sussmann allegedly told Baker he was sharing this “intel” on his own and not on behalf of any client. The indictment, however, charged that Sussmann in fact was acting on behalf of both the Clinton campaign and tech executive Rodney Joffe.

Following Sussmann’s indictment, the special counsel’s office served various subpoenas on those connected to the Alfa Bank hoax, including on the Clinton campaign; the DNC; Perkins Coie, the law firm representing the Clinton campaign; Fusion GPS, the investigative firm Perkins Coie hired; Joffe; and various tech companies Joffe is or was connected to.

Joffe refused to provide the subpoenaed documents, asserting his Fifth Amendment right against self-incrimination. The Clinton campaign, the DNC, Perkins Coie, and Fusion GPS withheld or redacted numerous documents, claiming these are protected by attorney-client or work product privilege.

Next, the Law

As Durham’s motion explains, attorney-client privilege protects communications “that a client conveys to his attorney for the purpose of security for an opinion on law, legal services, or assistance in a legal proceeding.” Such communications cannot be subpoenaed; the government also cannot question a witness about the content of such discussions. However, the party asserting the privilege has the burden of establishing that the communications are, in fact, privileged, and merely claiming they are is not enough.

While the attorney-client privilege applies generally only to communications between an attorney and a client, the privilege can extend to third parties under some circumstances. For instance, communications with non-lawyers hired to assist lawyers in the provision of legal services are privileged. But the key here is the communication must be “for the purpose of obtaining legal advice from the lawyer.”

In addition to the attorney-client privilege, the work product doctrine protects documents that were “prepared in anticipation of litigation or for trial” by third parties on behalf of the client.

Communications protected by attorney-client privilege can lose their protected status through waiver, where the information is shared with a third party. Additionally, the privilege is destroyed when the communication falls within the “crime-fraud exception,” although in this case, the special counsel’s motion does not rely on that theory to seek access to the documents. Instead, yesterday’s motion argues the communications withheld were not created, shared, or related to the provision of legal advice to either the Clinton campaign or the DNC.

Durham Wants the Documents, But Not Quite Yet

While Durham argues in Wednesday’s motion to compel that the redacted documents are not protected by attorney-client privilege, he acknowledges that without reviewing the content of the material, that assessment cannot be fully made. Thus, at this point, the government first seeks a court order compelling the third parties to provide the unredacted documents to the court for an “in camera” review, meaning a confidential review by the court.

In total, the third parties withheld and redacted more than 1,000 documents, but the government’s request seems focused on a much smaller population of documents, listed in Exhibit A filed in tandem with the motion. That exhibit, however, was filed under seal.

The motion instead provides a summary of the material Durham seeks. It fits within two categories. First, Durham’s team asks the court to review documents related to what the prosecution calls Fusion GPS’s “provision of opposition research and media strategy-related services” to the Clinton campaign, the DNC, and Perkins Coie. More specifically, the government requests the court review the unredacted version of the contract between Perkins Coie and Fusion GPS and 38 emails and attachments exchanged “between and among” Perkins Coie, Joffe, and Fusion GPS employees.

Second, the prosecution seeks a review of “certain communications” between Fusion GPS and Joffe related to the Alfa Bank theory, and related emails. Those communications include emails between Joffe and an unnamed Fusion GPS employee the government subpoenaed for Sussmann’s trial.

Clinton and the DNC in the Hot Seat

As noted above, the party advancing a claim of privilege bears the burden of establishing the communications are protected. That means that if they wish to preserve their privilege, the now-defunct Clinton campaign and the DNC will need to show why those communications are privileged.

The wrinkle in this case, of course, is that neither the Clinton campaign nor the DNC are parties to the criminal case. Most likely, presiding Judge Christopher Cooper will issue an order directing the third parties who possess the documents to file them under seal for an in camera review and provide the Clinton campaign and the DNC an opportunity to argue their claim of privilege.

Making that argument will be tough for several reasons. First, while Joffe and Sussmann had an attorney-client relationship, Joffe had no contractual relationship with the Clinton campaign, DNC, or Fusion GPS. Yet the Clinton campaign and the DNC asserted attorney-client privilege and work product protection, including over communications exchanged solely between Joffe and a Fusion GPS employee.

But there is no basis in law to withhold emails to, from, or copied to Joffe, since by including him in the emails, the communications would no longer be “in confidence,” even if they were arguably for “the purpose of obtaining legal advice from the lawyer.” In other words, any privilege would be waived.

The communications to, from, or copied to Fusion GPS likewise will not be protected unless they were “for the purpose of obtaining legal advice from the lawyer.” In its motion, the special counsel’s office acknowledges that Fusion GPS “conduct[ed] opposition research regarding Trump’s purported ties to Russia at the behest of the Clinton Campaign and the DNC” pursuant to a contract Fusion GPS entered with the law firm of Perkins Coie.

Durham also acknowledges that Marc Elias claims he provided legal advice to the Clinton Campaign about the Alfa Bank allegations. But that does not translate to Fusion GPS supporting Perkins Coie “related to legal advice.”

It Was a Hit Job, Not a Legal One

To the contrary, Durham argues that Fusion GPS’s “primary, if not sole, function” appears to be “to generate opposition research materials that the firm then shared widely with members of the media, the U.S. State Department, the Department of Justice, the Federal Bureau of Investigation (“FBI”), and members of Congress.” The government adds that while Perkins Coie hired Fusion GPS purportedly to “support” Perkins Coie’s legal advice to its clients on “defamation, libel and similar laws in which accuracy is an essential legal element,” Fusion GPS’s actions were unrelated to any such advice.

Rather, as the motion notes, the “evidence makes clear that the primary purpose” “was to assemble and publicize allegations that would aid the campaign’s public relations goals.” And, as Durham adds, the D.C. Circuit has previously held that advice from “a medial, journalistic [or] political’ consultant that is not used in providing legal advice is not privileged.”

Yesterday’s motion highlighted many of those public relation outreaches, arguing that Fusion GPS’ “role in promoting the wide dissemination of its own and others’ research would appear to contravene any notion that the primary purpose of their work was to aid confidential legal advice from [Perkins Coie] about potential libel and defamation litigation. “If anything,” the motion continued, Fusion GPS’s push for reporters to “hurry” to publish the Alfa Bank tale before resolving questions about its “authenticity” “would itself arguably create significant libel and defamation litigation risk,” the special counsel’s office quipped.

Based on these facts, Durham submits that the claims of attorney-client privilege and work product protections “deserve careful scrutiny.” After that review, the special counsel requests the court order the production of the documents in unredacted form. 

Sussmann Might Have Something to Say Too

While the motion to compel filed last night speaks only to the third parties who hold the privilege and the unredacted documents, Sussmann’s attorneys will likely weigh in too, repeating the complaint they made during last week’s status conference that followed the hearing on Sussmann’s motion to dismiss. At that time, Sussmann’s attorney complained that the special counsel’s office has been discussing privilege “for well over a year,” and that “to only now bring it up six weeks before trials” is unfair and raises due process concerns.

Sussmann, of course, could always agree to a continuance of the trial, but then he wouldn’t have the due process argument for a possible appeal in the event he is convicted—an insurance plan, so to speak.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.

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