John Durham Sets His Trap After Hillary for America Walks Right Into It

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We have previously reported on two desperate filings by Fusion GPS and Hillary for America. They tried to claim attorney-client privilege over the materials John Durham is trying to obtain for its prosecution of Michael Sussmann.

The obvious question remained unanswered. How can Sussmann claim that he was acting independently and not being paid for by Hillary Clinton while simultaneously having Hillary for America/Fusion GPS assert attorney-client privilege on their communications?

Here is what I wrote then.

Isn’t it an admission that Sussmann was being paid via proxies by the Clinton campaign? The information between Fusion GPS and Hillary for America as well as Perkins Coie (Sussmann’s employer) are allegedly covered by the attorney-client privilege. This would logically indicate that Sussmann was lying when it came to saying he wasn’t working for any client at that time. Although it is more difficult to make that case in court than it is here, it is still very informative.

Hillary for America reached an agreement with FEC to resolve violations. This is in contrast to the view they are trying to present before the Sussmann judge. Margot Cleveland, Federalist’s spokesperson, explains the details of a letter she sent to Durham pointing out this conflict in her article.

Backer highlighted Friday’s letter and also noted Hillary for America’s and the DNC’s agreement in their settlement agreement to the FEC to “not further challenge the Commission’s Finding of Probable Cause to Believe” that the political organizations had “falsely declared their payments through Perkins Coie via Fusion GPS as being for legal service.” The letter stated that Hillary for America and the DNC were asserting that materials created by Fusion GPS and given to Perkins Coie were protected by attorney-client privileges and work-product doctrine

“The Government should not allow HFA or the DNC to adopt contradicting positions in different proceedings depending on which federal agency they are litigating against,” the foundation’s letter stated. This suggests that the trial court could find these breaches “material” in ruling on privilege claims.

Can you see the problem? Hillary for America says in one case that Sussmann was only giving us legal service. In another, they admit that Sussmann wasn’t being paid for legal service.

Durham is setting his trap. He issued subpoenas to the jury on Saturday in an effort to get open testimony about the question of attorney-client privilege.

Sussmann’s lawyers claimed that they had learned Tuesday that Durham had issued trial subpoenas and that the special counsel “requests the testimony of witnesses regarding assertions of attorney-client privilege before the jury.” Sussmann’s lawyers stated that the Clinton campaign and DNC advised Sussmann to fight “this plainly impermissible testimony.”

“The Special Counsel this Week took the shocking and legally unwise step of subpoenaing witnesses for the express purpose to have them testify before the jury to the invocation of attorney-client privilege,” Sussmann’s lawyers claimed in a Friday filing.

He is about to take the relevant parties under oath, and expose the contradiction. Either they lie to the FEC about their previous agreement, or they lie in the Sussmann case.

Leslie McAdoo explains exactly how that will work.

Durham has supported Hillary for America and Sussmann into a corner. They don’t have anywhere to go and must admit that they lied. It is obvious that Sussmann’s work was not for legal services. He was being paid by Hillary to spread false conspiracy theories about Donald Trump. He was also not the only one who was involved in Perkins Coie’s, Hillary for America’s, and Fusion GPS.

This judge will hopefully see through the gamesmanship and not allow Durham to claim improper privilege over the materials he seeks. Once he does, things will get even more interesting.