Durham Raises FEC Ruling Against Clinton and DNC in Attorney-Client Privilege Battle

Special counsel John Durham is ramping up his efforts to get a judge to review documents shielded by attorney-client privilege claims from Hillary Clinton’s 2016 campaign and the Democratic National Committee.

The prosecutor submitted a filing in federal court Monday pointing to a Federal Election Commission ruling that fined those Democrats for violating rules with the funding of research that became a central part of the effort to accuse Clinton’s rival, Donald Trump, of collusion with Russia. The submission is part of the case against Michael Sussmann, a lawyer who was indicted in September for allegedly concealing his clients — Clinton’s campaign and “Tech Executive-1,” Rodney Joffe — from FBI general counsel James Baker in September 2016 when he presented internet data that suggested a now-discredited back channel link between the Trump Organization and Russia’s Alfa-Bank. Sussmann has pleaded not guilty.

Durham’s motion attached recently public FEC filings, including the FEC’s “conciliation agreement” with the DNC and Hillary for America. The FEC found “probable cause to believe” the Clinton campaign and the DNC improperly reported their payments to Perkins Coie for Fusion GPS’s opposition research as “legal and compliance consulting,” the special counsel said.

The special counsel said evidence at trial, set to begin this month, will show that beginning in late July 2016, Sussmann, Joffe, and “agents of the Clinton campaign” were “assembling and disseminating the Russian Bank-1 allegations and other derogatory information about Trump and his associates to the media and the U.S. government.” The special counsel said he will “establish that these efforts amounted to a joint venture.”

Hillary for America, the DNC, opposition research firm Fusion, and the Perkins Coie law firm are fighting Durham’s efforts to compel the handing over of withheld documents. They argue claims of attorney-client privilege should keep the records concealed and claim Fusion simply provided them legal services.

The Washington Examiner first reported in March that the FEC ruled the month prior there was “probable cause” to believe the Clinton campaign and the DNC violated federal laws by “misreporting the purpose of certain disbursements” and fined them.

The FEC said the DNC paid $849,407 and the Clinton campaign paid $175,000 to Perkins Coie for what was alleged in a complaint to be “opposition research done by Fusion.” The Clinton campaign reported the purpose of all those payments as “legal services,” and the DNC reported the purpose of most of those payments as “legal and compliance consulting.”

British ex-spy Christopher Steele created his discredited anti-Trump dossier after being hired by Fusion, which was itself hired by Perkins and Marc Elias, the general counsel for Clinton’s campaign. Sussmann and Elias worked for Perkins at the time. Fusion pushed Alfa-Bank claims, too.

Durham obtained hundreds of emails from Fusion showing it was pushing unverified Trump-Russia collusion allegations to the media throughout 2016.

The special counsel’s Monday supplement included a February filing by the FEC’s acting general counsel, Lisa Stevenson, in which she said the commission found “probable cause” that the DNC and Clinton campaign had violated campaign laws “by failing to report the proper purpose of the funds … paid to Perkins Coie for work performed by Fusion GPS.”

Another attached FEC document called the “First General Counsel’s Report” concluded that “the available information suggests that HFA and the DNC did not properly disclose the purpose of the disbursements to Perkins Coie, for what appears to have been opposition research done by Fusion.”

The FEC’s “Second General Counsel’s Report” found “the invoices demonstrate that Fusion was providing opposition research services related to Trump and Russia, and there is no evidence that Fusion provided services other than this opposition research.”

Durham said in April that Fusion “was not primarily providing or supporting expertise relating to legal advice; instead, it appears that the investigative firm’s primary, if not sole, function was to generate opposition research materials that the firm then shared widely.”

Durham noted that Fusion claims were pushed to the media, State Department, Justice Department, Congress, and elsewhere, and “these efforts resulted in numerous media articles” before and after the 2016 election. Fusion also drafted one of the “white papers” Sussmann gave Baker, according to the special counsel.

Sussmann last month accused Durham of “mounting a last-minute frontal assault on third-party assertions of attorney-client privilege and work product protection that affect what could be the production of thousands of documents, the testimony of numerous witnesses, and, most importantly, Mr. Sussmann’s fundamental defense strategy.”

Perkins said it withheld documents “as protected by the attorney-client privilege and work product privilege claims” asserted by the DNC, Clinton campaign, and Joffe.

Hillary for America said it was “asserting attorney-client privilege and work protection” related to Perkins and Fusion.

Elias included a redacted declaration claiming that “Fusion’s role was to provide consulting services” that Perkins was giving related to defamation and libel laws. “I provided Fusion direction on the research and information I thought would help me perform my job. … On some occasions, Fusion’s work was distilled and incorporated into my judgments about legal issues, while in other instances, I shared the results of Fusion’s work with my clients,” he said.

Fusion co-founders Glenn Simpson and Peter Fritsch wrote in their 2019 book that they met with Elias on April 20, 2016, and Elias wanted “deep research on Trump.”

Fritsch told Elias, “We think you guys will really want to pay attention to the Russia angle.”

“This angle was all new to Elias, and he loved it,” Fusion said, adding, “Fusion’s research team would soon be hired and given wide latitude.”

Fusion wrote, “Elias said Fusion would be reporting only to him” because “if Fusion’s communications were with a lawyer, they could be considered privileged and kept confidential.”

The special counsel said the “primary purpose” of Fusion’s work related to the Steele dossier and Alfa-Bank claims “was to assemble and publicize allegations that would aid the campaign’s public relations goals.”

Fusion argued that it “was operating as an investigative researcher to help Elias provide legal advice,” not as opposition research.

Durham said Joffe tasked employees and associates with mining and assembling internet data that would support an “inference” or “narrative” tying Trump to Russia. The tech executive’s motive was demonstrated in emails that said the goal was to please “VIPs” — apparently referring to Sussmann, Elias, and the Clinton campaign.

The FBI, CIA, special counsel Robert Mueller, a bipartisan Senate Intelligence Committee investigation, and Durham’s team have all cast doubt on or shot down the Alfa-Bank claims.

Reporting from The Washington Examiner.