Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign’s common interest, a federal judge presiding over the criminal case against Michael Sussmann ruled yesterday. Prosecutors will now be greatly limited in the material they may elicit from one of the two witnesses granted immunity in exchange for their testimony against Sussmann.
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. The latter protects notes, memoranda, and other communications capturing the mental impressions of an attorney, or those helping an attorney prepare for litigation.
Of the 38 emails, the court held that the Clinton campaign “had no valid basis to withhold 22 of” them. Those emails, the court concluded, did not concern legal advice but involved Fusion GPS employees’ interactions “with the press as part of an affirmative media relations effort by the Clinton Campaign.” “That effort,” the court noted, “included pitching certain stories, providing information on background, and answering reporters’ questions.”
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.
Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel’s office waited too long to file its motion to compel. “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.”
In reaching this conclusion, Judge Cooper noted that the emails did not appear “particularly revelatory,” suggesting there will be little harm to the special counsel’s case against Sussmann from the court’s ruling that the emails will be inadmissible at trial. And beyond the Sussmann case, the court’s ruling inures to the special counsel’s benefit because it establishes a precedent for Durham’s team to seek access to other communications withheld based on the Clinton campaign’s claims of attorney-client privilege. In total, there were nearly 1,500 other documents Fusion GPS withheld as privileged that the special counsel’s office may move to compel the production of as part of future grand jury proceedings or trials.
While that aspect of yesterday’s ruling proves positive for the broader special counsel’s investigation, the court’s conclusion that 16 of the 38 other emails remain privileged creates larger problems for Durham’s team. 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.
Given that Elias maintained all the emails were protected by attorney-client privilege, the court’s unquestioningly accepting his word seems strange. And if a court applies the same standard to assess whether the remaining approximately 1,500 emails are privileged, the special counsel’s office may face challenges obtaining much that matters.
But it was the court’s ruling concerning the final eight emails that has the most immediate effect on the special counsel’s office, namely its prosecution of Sussmann for allegedly lying to former FBI General Counsel James Baker. The last eight emails, with attachments, consisted of two email chains initiated by Joffe to both Sussman and Fusion GPS employee Laura Seago. In opposing disclosure of the email threads, Joffe asserted that “the purpose of the  communications at issue was to obtain [Fusion’s] assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe] competent, informed 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.”
The court, however, ignored the fact that Fusion GPS, for whom Seago worked, was hired by Perkins Coie to assist the Clinton campaign and the DNC, not Joffe. And Joffe did not pay for Fusion GPS’s services, nor did Perkins Coie charge Joffe. Further, as the special counsel noted in its briefing of the issue, “Perkins Coie also had no agreement, contract, or other arrangement reflecting that Fusion GPS was providing services specifically to aid Perkins Coie’s legal representation of [Joffe].”
Nonetheless, the court held the email threads between Joffe, Sussmann, and Seago were protected by attorney-client privilege based on case law holding communications that further “a common interest” are protected. What the court didn’t say, though, 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.
“The joint defense privilege,” or “the common interest rule,” is “an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” The common interest rule “protects communications between the parties where they ‘are part of an on-going and joint effort to set up a common defense strategy’ in connection with actual or prospective litigation.” That rule applies to communications subject to the attorney-client privilege, including communications with technical experts retained to assist in the legal defense.
In this case, as prosecutors stressed in their briefing, there was no “formal or informal legal relationship” between Joffe and the DNC and the Clinton campaign. Case law holds, however, that the “parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal.” But “without a written agreement, the party’s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.”
Yet, even without a written agreement, the court found a “common interest” existed to protect Joffe’s communications with Fusion GPS’s Seago, who was hired by Elias to provide legal support to the Clinton campaign. And what was that “common interest?”
According to Joffe, he hired “Sussmann to assist him in a specific legal matter – namely, to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and/or threats of violence and/or harassment.”
So, in concluding a “common interest” existed between Joffe and the Clinton campaign, the court implicitly also found “the parties have clearly and specifically agreed in some manner to pool information for a common goal,” here the goal of feeding the press and the government the Alfa Bank hoax.
The end results then are that the special counsel’s office cannot compel Fusion GPS to turn over the eight emails between Joffe, Sussmann, and Seago. But yesterday’s holding has broader consequences for the trial because, in closing its 11-page opinion, the court noted that it “will apply the principles set forth above to any assertions of privilege during witness testimony at trial.”
That means if prosecutors seek to elicit testimony from Seago, or any other employee of Fusion GPS for that matter, on various communications with Joffe, the court could rule the questions out of bounds based on attorney-client privilege. Given that the special counsel was forced to provide Seago with immunity to obtain her testimony at Sussmann’s trial, the court’s ruling yesterday represents a setback to Durham’s case.
Durham does have a few options, including asking the appellate court to resolve the issue of privilege before the trial starts. Prosecutors may instead decide to push forward and play any claim of privilege by Seago on the stand to their advantage, using it as further evidence that Sussmann was representing Joffe and the Clinton campaign when he presented Baker with the Alfa Bank material. They may also point to the “common interest” underlying the privilege analysis as proof that yes, there was a joint venture between the Clinton campaign, Joffe, and others, sufficient to overcome the defendant’s hearsay objections to other evidence.
Whether yesterday’s ruling represents an overall loss to Sussmann or the special counsel is yet to be seen, but what is clear is that it is another damning indictment of Hillary Clinton.
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.