Fusion GPS must hand over docs to Durham, but he can’t use them at trial

The judge in the case against Democratic cybersecurity lawyer Michael Sussmann ruled that John Durham’s team may review two dozen emails improperly withheld following Clinton campaign claims of attorney-client privilege — but the special counsel cannot use the records at next week’s trial.

Sussmann was indicted on charges of concealing his clients, the Clinton campaign and tech executive Rodney Joffe, from FBI general counsel James Baker when he pushed eventually debunked claims of a secret back channel between the Trump Organization and Russia’s Alfa-Bank.

Judge Christopher Cooper agreed to review more than three dozen records from the opposition research firm Fusion GPS to see if they had been improperly concealed.

Cooper found that Fusion “had no valid basis to withhold 22 of the 38 emails, but that it has met its burden to establish privilege over the remaining 16.”

He said the 22 improperly withheld emails “mostly involve internal communications among Fusion GPS employees.” He directed Fusion to provide Durham with the documents by Monday.

But Cooper’s new ruling came with a catch — Durham will not be allowed to use the emails at the trial slated to begin next week.

The judge said negotiations between Durham and Fusion “ended in January 2022 — yet the Special Counsel waited to file this motion until … just over a month before trial was set to begin.”

Cooper said “allowing the Special Counsel to use these documents at trial would prejudice Mr. Sussmann’s defense.”

The judge said Durham served his first subpoena on Fusion in March 2021 and that this privilege motion wasn’t made until April 2022. Cooper said he “generally agrees with the defense that the government waited too long to compel production of the withheld emails.”

The Clinton campaign, the Democratic National Committee, Fusion, and the Perkins Coie law firm fought Durham’s efforts to compel the handing over of withheld documents. Durham is insisting those groups played a coordinated role in pushing false collusion claims.

Durham believed that based on Fusion’s privilege log entries, the concealed emails likely related to Fusion’s efforts to push Alfa-Bank claims to the press, which Durham argued constituted opposition research and media activity not covered by privilege.

The 38 emails and attachments were among 1,500 documents Fusion withheld from Durham following grand jury subpoenas.

British ex-spy Christopher Steele created a discredited dossier on then-candidate Donald Trump after being hired by Fusion, which was itself hired by Perkins and Marc Elias, the general counsel for Clinton’s campaign.

The special counsel noted Fusion claims were pushed to the media, State Department, Justice Department, Congress, and elsewhere, which "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.

“The Court has no reason to question M... (Read more)

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