Hillary Clinton, Fusion GPS, and high-powered Democrat law firm Perkins Coie took a loss this week that portends bigger trouble down the road. U.S. special counsel John Durham won a ruling in federal court that some important documents he wants to introduce in the trial of former Clinton campaign lawyer Michael Sussmann are not subject to claims of attorney-client privilege.
Durham argued that the documents are vital to the case against Sussmann, who is accused of lying to the FBI at the time he shared alleged evidence in 2016 that claimed to connect the Donald Trump presidential campaign to the Russian Alfa Bank.
Durham alleges that Sussmann made representations at that time to FBI lawyer James Baker that he was acting as a private citizen and was not working on behalf of any client. Billing records indicate that Sussmann billed the Clinton campaign for his time and efforts in attempting to get the FBI involved in investigating the bogus Trump allegations.
Durham’s team argued in court that the CIA eventually determined that the “evidence” pushed by Sussmann was “not technically plausible” and does not withstand analytic scrutiny. In finding the material was fabricated, the CIA deemed it to be “user-created” rather than how it was purported to be mechanically generated.
U.S. District Judge Christopher Cooper granted Durham’s motion on Wednesday, finding that the claims that attorney-client privilege protected the documents from being introduced at Sussmann’s trial does not apply. The judge’s order provides that he will review the material privately in advance before deciding what can be made public under the law.
The contested documents reportedly include communications between the Clinton campaign, Fusion GPS, Perkins Coie, and the Democratic National Committee. The key legal issue in the judge’s ruling involved the distinction between hiring a lawyer to engage in “fact checking” and doing “opposition research.”
The Clinton campaign, Perkins Coie, and the DNC intervened in the Sussmann criminal case in order to claim that the records should be kept out of evidence because they all say they hired Fusion GPS to provide “legal services.” They maintained that claim placed a cloak of attorney-client privilege over everything Fusion GPS did in the matter as a result.
Durham successfully argued that the actual work performed by Fusion GPS exceeded the scope of any legitimate legal services amounting to nothing more than basic political opposition research.
Sussmann lawyer Sean Berkowitz said that Durham “charged a case” that has privileged material “all over the place.” He said the judge’s ruling could have a “ripple effect.” As a result, thousands of documents related to the Clinton campaign’s efforts to bring federal law enforcement into action against Trump and his associates could come into public view eventually.