A federal judge on Thursday ordered the research firm Fusion GPS to turn over nearly two dozen emails to special counsel John Durham, a victory for the special counsel over Fusion’s and others’ claims that the emails were privileged communications.
Durham asked D.C. District Court Judge Christopher Cooper to review 38 Fusion emails “in camera,” or out of view of the public, to determine whether they were being improperly withheld from Durham’s team. After reviewing the documents, Cooper ruled that over half of them did not fall under attorney-client privilege as cybersecurity attorney Michael Sussmann, Hillary Clinton’s 2016 campaign, and Fusion argued.
Sussmann is set to stand trial next week for allegedly lying to the FBI in 2016 when he approached then-FBI general counsel James Baker about a secret backchannel between the Trump Organization and Alfa Bank, one of the largest private banks in Russia. Durham has alleged that, contrary to Sussmann’s claims, the cybersecurity attorney approached Baker as a Clinton campaign operative to spread now-debunked claims about former President Donald Trump.
While Durham has gained access to the 22 of the 38 emails he requested, Cooper forbid prosecutors from introducing them as evidence in the Sussmann trial. Cooper said that entering the emails into evidence days before the trial would “prejudice Mr. Sussmann’s defense.”
“Still, the record shows that these discussions ended in January 2022—yet the Special Counsel waited to file this motion until April 6, 2022, just over a month before trial was set to begin. And, given the number of privilege holders involved and the fact-bound nature of the issues, resolving the motion has naturally taken us to the eve of trial,” Cooper wrote. “Under these circumstances, allowing the Special Counsel to use these documents at trial would prejudice Mr. Sussmann’s defense.”
“Accordingly, the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege,” the judge said. “The Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged, as they are not the subject of the government’s motion. However, the Court will apply the principles set forth above to any assertions of privilege during witness testimony at trial.”
The batch of 38 emails Durham originally asked Cooper to review were part of a larger batch of some 1,500 emails that Sussman, the Clinton Campaign, Fusion GPS, and the Perkins Coie law firm claimed fell under attorney-client privilege.
Sussmann was an attorney for Perkins Coie in 2016 when the law firm was representing the Clinton Campaign. He is accused of intentionally hiding his connection to the Clinton campaign when he approached Baker with purported evidence of a Trump-Russia connection. At least part of the supposed evidence Sussmann provided to the FBI was determined by the CIA to be not “technically plausible” and “user created and not machine/tool generated,” Durham revealed in an earlier court filing.
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