Defense attorney warns of a "hornet’s nest" in special counsel John Durham's drive to access records that Democratic groups say are privileged.
A looming legal battle could reveal new details about the decision by Hillary Clinton’s 2016 presidential campaign to commission a research project that produced a controversial dossier on Donald Trump’s alleged ties to Russia.
Prosecutors on special counsel John Durham’s team handling a criminal false-statement case against a top lawyer for Democratic causes, Michael Sussmann, indicated on Thursday that they planned to challenge claims of attorney-client privilege raised by the Democratic National Committee and Clinton’s campaign.
The issue has lingered for years, with the Democratic groups claiming that the investigative firm that produced the dossier, Fusion GPS, did so as part of attorney-requested research related to potential litigation.
However, Durham’s prosecution of Sussmann, a former Perkins Coie partner, may bring the question to a head as prosecutors seek to call witnesses from the law firm and Fusion GPS.
“It’s obviously a bit of a hornet’s nest,” defense attorney Sean Berkowitz said on Thursday during a pretrial hearing for Sussmann, who’s accused of lying to the FBI by denying he was working for any client when in September 2016 he brought FBI general counsel James Baker computer data that hinted at links between Trump entities and Russia.
Berkowitz said that on Wednesday night, Durham’s team indicated that it planned to contest the privilege claims in the lead-up to Sussmann’s trial, set to open May 16 in Washington. The defense attorney denounced the prosecution’s move as “wildly untimely” and “an ambush that could change the entire parameter and focus of the case.”
“We’re very concerned about it,” Berkowitz told U.S. District Court Judge Christopher Cooper.
During a House Intelligence Committee investigation in 2017, Clinton campaign general counsel Mark Elias, a Perkins Coie attorney, testified — with permission from the DNC and the campaign — that he selected Fusion GPS to do research on Trump and individuals in his orbit. He said Clinton campaign manager Robbie Mook approved the work, but wasn’t involved in picking the firm. But details of who in Clinton’s orbit knew about the sensitive project, handled primarily by former British intelligence officer Christopher Steele, remain murky.
“We have had conversations and have been unable to get comfort as to the grounding and basis of various privilege theories,” Assistant U.S. Attorney Andrew DeFilippis told the judge. “These issues are unavoidable and we’ve been working for quite some time to get to the bottom of them.”
DeFlippis didn’t delve into the details of the dispute during the hearing held by videoconference on Thursday, but he gave one example: He said the Clinton campaign was asserting privilege over communications of Rodney Joffe, a tech executive who compiled the data Sussmann shared with the FBI. The campaign has asserted the privilege even over messages it was not copied on, DeFelippis said.
Durham’s team is, to some extent, shooting in the dark. DeFilippis signaled on Thursday that prosecutors didn’t know the details of much of the information they might want to bring up at Sussmann’s trial because those statements are redacted in documents the prosecution team has access to.
“We don’t have insight into what’s under the redactions,” DeFilippis said.
Lawyers and spokespeople for the Clinton campaign, the DNC and Perkins Coie did not immediately respond to requests for comment on the dispute. An attorney for Fusion GPS declined to comment.
Cooper, an appointee of President Barack Obama, did not say much about the issue on Thursday, but noted that lawyers for those parties would need to be involved. He asked the prosecution and defense to set a schedule to hash out the issue in advance of the May trial.
The bulk of Thursday’s hearing was devoted to a motion by Sussmann’s attorneys to throw out the single-count false-statement charge against their client on various grounds. The effort appeared to face an uphill battle because of the relatively high bar to have a criminal case tossed out on a motion to dismiss.
Much of the argument revolves around the prosecution’s claims of why Sussmann’s alleged false denial that he was working on behalf of any client in making the disclosure to the FBI was material to the FBI’s work. The indictment, returned by a grand jury in September, contends that Sussmann’s denial had the potential to affect the resources and intensity with which the agency investigated the claims of computer links between Trump Tower and a Russian bank. However, prosecutors have yet to present their evidence on that point. Typically, if prosecutors say they have such evidence, a judge will allow it to be presented at trial unless the defense can show it is impossible for the prosecution to prove its case because of some legal defect.
Defense attorney Michael Bosworth said that because of the “unusual” narrative nature of the indictment — which ran to 27 pages and included a slew of allegations about Sussmann and others — the case ought to be assessed now by the assertions prosecutors placed in that document.
“We think this is the statement of the theory of the case that binds them here, and we think that as a result you’ve got to look at that, and no more, for these purposes,” Bosworth said.
But Cooper seemed skeptical about that approach, noting that he hadn’t seen the bulk of the evidence yet.
“I obviously don’t have the benefit of the discovery in this case,” the judge said. “Why aren’t these jury questions?”
Bosworth assailed the prosecution’s case, noting that the indictment doesn’t accuse Sussmann of giving the FBI false data — just misleading them about who was involved in procuring it.
“This is an unprecedented false-statements prosecution,” Bosworth said. ”Never before has an individual who provided a tip to the government been prosecuted for making a false statement that’s ancillary to the tip itself that’s not a false tip.”
Bosworth also warned that prosecuting people for that kind of peripheral misstatement would have a chilling effect that discourages people, especially lawyers, from coming forward with evidence of potential crimes.
“That is not good for anybody,” he said.
Cooper did ask whether Sussmann was asked by Baker about the identity of Sussmann’s client or whether Sussmann volunteered the information. Both sides said it was volunteered.
The judge seemed to be suggesting that a false answer to a question asked by an investigator might be more obviously material than something someone said spontaneously, although Cooper later said he wasn’t sure whether that mattered.
Bosworth also argued that it was bizarre that prosecutors are suggesting that the source of the information was important, since the FBI never asked that question at any point.
“If it matters so much, you’d think at some point someone would have said, ‘Hey, buddy, you provided the tip to the government. Where did this stuff come from?’” the defense attorney said. “It is simply nonsensical that the FBi didn’t ask those questions here.”
Bosworth ridiculed the idea that Sussmann intentionally withheld from the FBI the roles of the DNC or the Clinton campaign in the matter or that he routinely represented Democratic clients. The defense lawyer said that weeks before the Baker meeting, Baker and the FBI knew he was representing the DNC on other issues the FBI was examining.
However, the prosecutor said Sussmann’s alleged lie about his client clearly met the legal standard of having the potential to impact the FBI’s decision-making.
“He triggered an investigation which, in the government’s view, multiplies the materiality of the false statement, because he caused the FBI to initiate a new investigation based on misleading information,” DeFilippis said. “It is always paramount where the information came from. And it is always paramount what the motivations, intentions and background is of the person providing the information.”
DeFilippis said the FBI eventually determined that the suspicions of data links with Russia were “unsupported.”
“That’s different than whether the data was accurate or not,” Cooper observed.
At that point, the prosecutor alluded to what appears to be the operating theory of Durham’s investigation: that someone cooked the data to generate a meritless FBI investigation in a bid to do political damage to Trump.
“That’s a much more complicated issue: whether the data was in whole or in part real, manipulated, or cherry-picked or any of the above,” DeFilippis replied.
The prosecutor seemed to indicate that Durham’s team doesn’t plan to argue at trial that the data was fabricated or torqued, but wants the right to do so if Sussmann’s team tries to argue to the jury that he was simply passing on information that he had every reason to believe was accurate.
Cooper issued no immediate ruling on the defense motion to toss out the case, but said he’d seek to do so “sooner rather than later.”
Kyle Cheney contributed to this report.
