If the emails are probative, the jury should see them.
If the emails are probative, the jury should see them.
J ustice Department special counsel John Durham has won a hollow victory in his false-statements prosecution of Democratic lawyer Michael Sussmann.
Federal District Judge Christopher (“Casey”) Cooper decided on Thursday that Fusion GPS, the information firm that provided opposition-research on Donald Trump for the 2016 Hillary Clinton campaign, must surrender many of the emails Fusion has been withholding from Durham. Yet Judge Cooper also ruled that prosecutors may not introduce the emails against Sussmann in the trial, which is set to begin on Monday.
It is an oddball ruling, but as we’ll see, the prosecution’s position on the emails is also baffling. While Durham’s team should have litigated the privilege claims with more urgency, Cooper’s reasoning in suppressing relevant emails is ridiculous. For example, Cooper claims in his eleven-page opinion that the emails at issue are not “particularly revelatory.” That does not square with the facts that (a) Fusion (joined by Sussmann, the Clinton campaign, and tech executive Rodney Joffe) has fought very hard against disclosure, and (b) Cooper rationalizes that the emails should be suppressed at trial because the lateness of their discovery could unfairly prejudice Sussmann. But if there’s nothing “particularly revelatory,” where’s the prejudice?
Background
Fusion GPS was founded by journalists Glenn Simpson and Peter Fritsch. The firm played a key role in what Durham has described as a Clinton campaign-driven “joint venture” to both smear Donald Trump as a clandestine agent of Russia and draw the FBI into investigating him as such. In addition to recruiting British spy Christopher Steele to compile the now infamous Steele dossier, the firm also helped the Clinton campaign and its lawyers peddle the Alfa Bank story. That was the claim, at the heart of the Sussmann case, that Internet data indicated Trump and the Kremlin had established a communications back channel, using servers at that regime-tied financial institution.
As we’ve explained repeatedly, Sussmann’s alleged false statement to the FBI (concealing that he was working for the Clinton campaign and Joffe) is only a sliver of the conduct Durham has been investigating. Not surprisingly then, the 38 emails that Durham claims are relevant to the Sussmann trial are only a fraction of the 1,500 emails Fusion has withheld from Durham, citing the attorney–client privilege. Cooper determined that 22 of those 38 emails are not covered by the privilege and must be surrendered to prosecutors by Monday. (The ruling does not affect the rest of the 1,500 emails.)
Cooper is wrong even on this aspect of his decision. Durham should have gotten all of the emails.
Attorney–Client and Attorney-Work-Product Privileges
Fusion, joined by its collaborators, claimed the emails were shielded by the attorney–client (A/C) privilege and the related attorney-work-product (W/P) privilege. The former protects confidential communications between lawyers and clients for the purpose of seeking legal advice; the latter protects memoranda and other documents lawyers produce in anticipation of litigation. The courts have extended the privileges to investigators and other agents retained to assist the attorney in providing legal advice and preparing for litigation.
The Clinton campaign was represented by Marc Elias, Sussmann’s partner at the Perkins Coie law firm (which both lawyers have recently, separately left). On the W/P privilege, Elias claimed that he retained Fusion to help him with potential litigation: Because of Trump’s litigious history, Elias anticipated he might at some point sue the Clinton campaign for defamation. Elias further claimed, relevant to the A/C privilege, that Fusion’s research was incorporated into his legal thinking and advice to the campaign. Fusion’s counsel echoed these assertions, and Cooper concluded that the lawyers’ representations were consistent with the retainer agreement.
But of course, that wasn’t Fusion’s main function. The firm did opposition research to craft a political narrative about Trump, and then publicized the narrative and what Fusion purported to be supporting materials to the media and to government officials.
Cooper analogizes Fusion’s work to the services a private investigator normally provides to a lawyer, but the two things are not similar. The oppo was compiled for the very purpose of being publicized; it was not meant to be confidential and it was not gathered with an eye toward litigation. Cooper cites scant authority for his theory that the generating of opposition research to publicly smear a political opponent is akin to traditional attorney-support services. Moreover, the judge plainly recognizes that his analogy to private investigators does not work; despite the retainer agreement and Elias’s blather about legal advice, Cooper concedes:
It is clear that Fusion employees also interacted with the press as part of an affirmative media relations effort by the Clinton Campaign. That effort included pitching certain stories, providing information on background, and answering reporters’ questions.
Cooper nevertheless finds that eight emails solely between Fusion staffers are privileged because they might have been somehow related to helping Elias advise the campaign. And the judge also concludes that eight Joffe–Sussmann emails are privileged, even though (a) Joffe did not submit a declaration explaining his privilege claims, and (b) the emails are not confidential since copied on them was Laura Seago, a Fusion analyst who was not retained by either Joffe or Sussmann.
What Is Durham’s Theory — Fraud or Overzealous Politics?
But here is what’s baffling. Durham has argued that the Clinton campaign, its lawyers, Fusion, and Joffe were involved in a joint venture that was intended to portray Trump as a Putin puppet and lure the FBI (as well as the CIA and the State Department) into investigating him. It has certainly seemed that Durham is suggesting that this was a big scheme to deceive and defraud the government. Well then, what about the crime-fraud exception to the A/C and W/P privileges? If a client is involved in a fraudulent act, and the client consults an attorney to carry out or cover up the fraud, then that communication is not privileged.
As we’ve noted, Durham has not charged anyone with conspiracy to defraud the government. But there is no requirement that the A/C communications be in furtherance of a crime for the crime-fraud exception to apply. If the communications further a fraudulent act that is not necessarily a crime, the A/C and W/P privileges do not shield the communications.
This, then, raises the question: What exactly is the prosecution’s theory of what the “joint venture” was? If it was a big fraud scheme, it is hard to understand why Durham would not argue that the crime-fraud exception applies.
On the other hand, perhaps the reason why Durham has not charged anyone with conspiracy, and why he refers to this enterprise as a “joint venture” rather than a fraudulent scheme, is that the prosecutor is not convinced he can prove fraud. Perhaps Durham is not confident he can disprove the possibility that the activist Democrats who collaborated here really did believe that Donald Trump had a corrupt relationship with Moscow, and that what they did was merely a case of overzealous and extravagant deductions drawn from paltry and unreliable evidence. Maybe the prosecutor is not sure there was a conscious, willful effort to deceive the government and the public based on fabricated evidence.
On this score, I’ll repeat the point I made three weeks ago: While prosecutors reported that the CIA had determined the Alfa Bank Internet data were bogus and fabricated, Durham took pains to say that (a) he was not yet convinced that the CIA was right about that, and (b) the FBI had decided the data were not sufficient evidence to warrant further investigation but did not leap from that premise to the conclusion that the data were fraudulent. And how about Durham’s position on the discredited Steele dossier? I’ve previously observed that Durham’s indictment of Igor Danchenko (Steele’s main dossier collaborator) says only that Danchenko lied to the FBI about his sources of information; Durham did not allege that the dossier was fraudulent — it makes no difference to his case against Danchenko whether the dossier is a tissue of lies or a good-faith intelligence compilation.
That is, Durham’s probe strongly suggests that there was something deeply dishonest about the Trump–Russia collusion narrative. Why else, for example, would Sussmann lie to the FBI to conceal the Clinton campaign’s role in the Alfa Bank angle? If Sussmann and his collaborators truly believed their evidence proved a Trump–Putin communications back channel, there would be no reason to hide the Clinton role. Her campaign would want to take public credit for exposing such a profound threat to American national security. But nonetheless, Durham has not come out and formally accused anyone of committing fraud.
It is very curious, but it does seem as if, even after three-plus years of scrutinizing Russiagate, Durham still hasn’t decided whether it was a criminal conspiracy or just sharp-elbowed politics that was irresponsible but not necessarily criminal.
Judge Cooper’s Absurd Suppression of the Fusion Emails
Finally, Judge Cooper’s suppression of the 22 emails from Sussmann’s trial is indefensible.
The judge claims that Sussmann could be sandbagged by this not “particularly revelatory” information because it comes on the eve of trial. To be sure, Durham could have moved faster. He apparently knew by no later than January 2022, and likely by late 2021, that Fusion and the Clinton campaign would fight disclosure of the emails. But he continued to try to negotiate with them without involving the court, and waited until April 6 to ask the judge to compel disclosure. Cooper emphasizes that this was “just over a month before trial was set to begin.” It was actually closer to six weeks . . . but so what?
It is a commonplace for parties to get new information not only late in the pretrial phase but even after a criminal trial has already started. Indeed, the penal statute that controls discovery of witness statements (Section 3500) says they do not need to be produced until after the witness has testified on direct examination at trial. Yes, judges always prod the parties to make early discovery; doing so avoids delay and waste of the jury’s time once the trial starts. Late disclosures, however, frequently occur. When they do, unless the delay has been in bad faith, the usual remedy is to give a party a brief continuance to conduct whatever investigation of the new information needs doing.
Six weeks prior to trial is entirely reasonable in this instance. We are talking about a very limited amount of information: It’s 22 email chains; it’s not like Durham dumped a truckload of documents at the last second. Furthermore, because Sussmann was in cahoots with the Clinton campaign and Fusion, he is already in a much better position to know what is in the disputed emails than Durham.
It is rich of Cooper to fault Durham for dragging his feet when the reason this issue was finally resolved just a few days before trial is the snail’s pace Cooper himself kept in addressing it. Plus, what is scheduled on Monday is jury selection; it’s not like opening statements and evidence are about to start. Cooper could easily have ordered Fusion to turn over the emails to Durham forthwith, so that Durham could make immediate discovery. Sussmann would then have had all weekend to assess the new (ahem) information. Then, if Sussmann implausibly claimed he needed more time, Cooper could have given him a few more days. Or could have directed Durham to delay the introduction of the emails until later in the trial.
There was no good reason here to suppress relevant evidence. Cooper is a former Justice Department attorney. It is thus remarkable to read this drivel at the end of his opinion:
The Court is not in the best position to predict how new evidence might affect each side’s trial strategy and preparation. The Court therefore will not, as a matter of principle, put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date.
A trial is a search for the truth, but Cooper would instead turn it into a game in which the defendant gets to remain competitive no matter how damning the evidence is. An accused has a right to present whatever legitimate defense he has to the charges. He does not have a right to be given a defense, or to have relevant, probative evidence suppressed because it would upend the strategy he hopes to employ. The defense adopts a “strategy” in order to convince the jury that the prosecution’s proof is insufficient; therefore, the essential point of introducing incriminating evidence is to defeat that strategy. Durham’s job is to make required discovery; it is not to help Sussmann design a strategy.
The judge might have a point if Durham had acted in bad faith, but he obviously did not, and Cooper does not suggest otherwise. And it is just laughable for Cooper to ignore his own foot-dragging on this issue, and to intimate that Sussmann does not have enough time to prepare for the email evidence. If the emails are probative, the jury should see them. The judge’s obligation is to give the defendant a fair trial, not to insulate the defendant from relevant, admissible evidence of guilt. The United States is entitled to a fair trial, too.