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The Hillary Clinton campaign and Democratic National Committee’s claims of attorney-client privilege in the Michael Sussmann criminal case may constitute a breach of the settlement agreements they entered with the Federal Election Commission, according to a letter sent to Special Counsel John Durham’s office on Friday.
That letter, obtained first by The Federalist, followed the flurry of motions to intervene filed in the special counsel’s pending false statement case against Sussmann. Hillary for America, the DNC, tech executive Rodney Joffe, Sussmann’s former law firm of Perkins and Coie, and the investigative firm Fusion GPS all filed motions last week asking the court for permission to argue against disclosing documents to the special counsel based on their claims of attorney-client privilege.
The special counsel’s office had previously filed a motion arguing that the court should review 38 documents withheld in response to grand jury subpoenas to assess whether the secreted material truly qualified as protected by attorney-client privilege. The day after Sussmann responded to that motion, opposing any such in camera review by the judge, his fellow Spygate hoaxers sought to join in Sussmann’s efforts to keep the documents concealed.
After the Hillary for America and the DNC’s motions to intervene hit the Sussmann docket, The Coolidge Reagan Foundation penned a three-page letter to Durham and Assistant Special Counsel Jonathan Algor. That letter alerted the special counsel’s office to key facts about the FEC’s recent decision to fine the political groups in relation to a complaint the foundation had filed with the FEC. That complaint charged Hillary for America and the DNC with using the “law firm, Perkins Coie, to hire and funnel over $1 million to ‘outside research firms’ such as Fusion GPS ‘to perform potentially sensitive, controversial, or politically embarrassing’ opposition research into Donald Trump.”
The FEC complaint, filed in 2018, alleged that “the research was not ‘for the purpose of assisting Perkins Coie in providing legal advice,’” but to further the “political and campaign-related goals” of the organizations. The foundation also claimed in its FEC complaint that because the work was not “for the purpose of providing legal advice or assisting with impending or potential litigation, it was not covered by attorney-client, work-product, or other privileges.”
Significantly, as the foundation noted in its April 22, 2022 letter to the special counsel’s office, the FEC had “found probable cause to believe” the political organizations had misreported the purpose of certain disbursements. The FEC reached that conclusion based on a memorandum prepared by the FEC’s Office of General Counsel, but under controlling regulations that memorandum “will not be made public for another week,” the letter explained.
Foundation counsel Dan Backer added that while the memorandum is not yet public, the special counsel’s office would likely be able to obtain it directly from the FEC. That memorandum also will provide Durham’s team further details on the FEC’s investigation and fact-finding that may be useful to the special counsel in the Sussmann litigation, noted the letter.
In Friday’s letter, Backer also highlighted Hillary for America and the DNC’s commitment in their settlement agreement with the FEC to “not further contest the Commission’s finding of probable cause to believe” that the political organizations had “falsely reported their payments through Perkins Coie to Fusion GPS as being for legal services.” In contrast, in the Sussmann case, Hillary for America and the DNC “are nevertheless asserting materials generated by Fusion GPS and provided to Perkins Coie are protected by attorney-client privilege and work-product doctrine,” the letter stressed.
“The Government should not permit HFA and the DNC to adopt conflicting positions in different proceedings, depending on the federal agency against which they are litigating,” the foundation’s letter concluded, suggesting the trial court may find those breaches of the settlement agreement “material in ruling on any privilege claims.”
Whether the special counsel will follow the foundation’s suggestion and obtain the memorandum prepared by the FEC’s Office of General Counsel before the judge in the Sussmann case rules on the Clinton campaign and the DNC’s assertions of attorney-client privilege is yet to be seen. But what is clear is that the special counsel’s office intends to ensure the jury knows that both the Clinton campaign and the DNC believe communications relevant to Sussmann’s efforts to peddle the Alfa Bank hoax are protected by attorney-client privilege.
On Friday we also learned just how the special counsel hopes to do that—by having representatives of both the Clinton campaign and DNC testify at trial. That revelation appeared in a response brief Sussmann’s attorneys filed last week, wherein the defense team noted that they had just learned that the special counsel had issued trial subpoenas to both the Clinton campaign and the DNC. According to Sussmann’s legal team, the special counsel requested “the testimony of witnesses” from those political organizations “regarding the assertion of attorney-client privilege in front of the jury.”
Sussmann is now also seeking to exclude that testimony and claims that both the Clinton campaign and the DNC will likewise seek to quash the subpoenas.
The irony in all of this, of course, is that the more Sussmann, the Clinton campaign, and the DNC hide behind the claims of attorney-client privilege, the more it appears that, yes, Sussmann pushed the Alfa Bank hoax, including during his meeting with FBI General Counsel James Baker, on behalf of the Clinton campaign. The FEC’s conclusion that probable cause existed to support the finding that the Clinton campaign and DNC had falsely reported fees paid to Fusion GPS as legal fees only further supports that conclusion.
The question Friday’s letter to the special counsel’s office raises, however, is whether the Clinton campaign and the DNC’s settlement agreement with the FEC, in fact, forecloses their claims of privilege in the Sussmann case. Backer believes it does, telling The Federalist, “The Clinton Campaign and the DNC want to have their cake and eat it too, but they cannot simultaneously say they won’t contest the reasoning behind the FEC fine and settlement agreement and also run to federal court and say, ‘No, no, no, everything we do is privileged.’”
That, however, is precisely what Hillary for America and DNC are doing, leading one to wonder if the real issue in play is not attorney-client privilege, but the privilege of being a Democrat.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.
Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.
As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.