Court Agrees To Let Spygate Cabal Hide Emails From Grand Jury

Sussmann, whose trial in a D.C. federal court on a false statement charge is set to begin on Monday, scored a victory Thursday when presiding judge Christopher Cooper rejected Special Counsel John Durham's attempts to present the jury copies of emails previously withheld by Joffe, the Clinton campaign, and the Democratic National Committee as privileged.

The ruling came in response to Durham's motion to compel Fusion GPS to provide the court, for in camera review, 38 emails the investigative research firm withheld from the grand jury based on the Clinton campaign's claim of attorney-client privilege and work-product privilege.

Among the emails related to the "Ordinary media-relations work" undertaken on behalf of the Clinton campaign were "Internal Fusion GPS discussions about the underlying data and emails circulating draft versions of one of the background white papers that was ultimately provided to the press and the FBI." Because those emails were not written in anticipation of litigation, but instead related "Solely to disseminating the information they and others had gathered," the court held the emails were not protected by either attorney-client privilege or work-product privilege.

"As a matter of principle," the court explained, it would not "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." Accordingly, the court held, "The government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege."

Eight of those emails also involved internal communications among Fusion GPS employees, the court noted, but because the court was "Unable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigation," the court deferred to claims by Fusion GPS's attorney Joshua Levy and Clinton campaign attorney Marc Elias that the emails related to legal advice.

The court held that Joffe's communications to Sussmann were protected by attorney-client privilege even though the emails included a non-lawyer, Seago, because attorney-client privilege extends to communications by third parties that an attorney hires to facilitate "The effective consultation between the client and the lawyer." In reaching this conclusion, the court reasoned that Seago's "Involvement related to the technical analysis of the data, which would naturally inform Mr. Sussmann's advice to his client about the data."

What the court didn't say but what must be true under privilege law and "The common interest rule" is that the court believed the communications furthered a common goal of Joffe and the Clinton campaign.
 

https://thefederalist.com/2022/05/13/court-agrees-to-let-spygate-cabal-hide-some-of-their-emails-from-the-grand-jury/