A blizzard of petitions, motions, and counter-motions have been filed in response to Special Counsel John Durham’s April 6 request for documents from the Democratic National Committee (DNC) and Hillary Clinton’s 2016 campaign withheld from federal investigators under attorney-client “privilege.”
Durham is seeking communications—primarily 38 email exchanges between the DNC and Clinton’s campaign and their law firm Perkins Coie and Fusion GPS, the “opposition research” contractor that circulated debunked claims of an alleged “secret server” link between the Trump Organization and a Russian bank—in his case against Michael Sussmann.
Sussmann, who worked for Perkins Coie, goes on trial on May 16 in United States District Court in Washington, D.C., on one count of making a false statement.
He is charged with lying when he claimed to be acting as “a concerned citizen” instead of representing the DNC and Clinton’s campaign on Sept. 19, 2016, when he gave FBI General Counsel James Baker documents that purported the Trump Organization maintained clandestine communications with Russia-based Alfa Bank.
Since April 18, the DNC, Clinton Campaign, Fusion GPS, and Perkins Coie have all petitioned to intervene in the case to challenge Durham’s motion to turn over communications they claim are attorney-client privileged or beyond the scope of the charge against Sussmann.
After an April 20 hearing that waded through Sussmann’s petitions to restrict testimony about the veracity of the claims and the way the data was collected, U.S. District Judge Christopher Cooper set April 22 and April 25 deadlines for all parties to file responses to all petitions and motions in anticipation of an April 27 in-person hearing.
The petition to intervene—filed by Clinton’s campaign Hillary For America—features declarations from three key players that until April 18 had been much-speculated about but little heard from in the 18-month investigation.
They are former Clinton campaign chair John Podesta, campaign manager Robby Mook, and Marc Elias, the Perkins Coie attorney who has served as lead counsel for the DNC and assorted Democratic candidates since 2009.
All say the communications between the law firm, Fusion GPS, DNC, and the campaign that Durham seeks should remain withheld as “privileged” because they were all related to “legal services and legal advice.”
In his three-page declaration Podesta said, “to my knowledge” Perkins Coie has “consistently maintained the confidentiality of documents and information covered by the attorney-client privilege and the attorney-work-product doctrine.”
The now-defunct campaign “asserts its attorney-client privilege and the attorney-work-product protection” and “opposes the government’s motion to compel,” he wrote.
In his two-page statement Mook said that in April 2015, HFA hired Elias and Perkins Coie as its general counsel. By April 2016, it was apparent that Trump would be the likely GOP nominee to challenge the heavily favored Clinton that November.
“One of the topics about which Perkins Coie provided legal services and legal advice to HFA involved fact-finding and research that the campaign conducted regarding candidate Donald Trump,” Mood wrote. He added he did not know the law firm had hired Fusion GPS to conduct the “opposition research.”
“Although I was not aware during the campaign of any contractors that Perkins Coie engaged to assist it in providing legal services and legal advice regarding this work, I did believe throughout the campaign that whatever work Perkins Coie performed, either through its own professionals or through any contractors it may have engaged to assist it, the work was done for the purpose of providing legal services and legal advice to HFA,” he wrote.
In his seven-page affidavit Elias wrote that Fusion GPS was hired as a preemptive resource to amass data and details that could be used in thwarting legal challenges from the notoriously litigious Trump.
“My recollection is that those claims resulted in threatened and actual litigation,” Elias wrote. “Accordingly, in my and the firm’s capacity as general counsel for the Clinton Campaign, I expected to encounter similar claims and litigation risks from the opposing candidate, political party, and their supporters.”
Noting Trump had filed more than 7,000 lawsuits either personally or through his businesses, he continued, “Trump had been involved in an exceptionally high number of lawsuits—ranging from slip-and-falls to complex bankruptcies and restructuring—more than I recall ever previously encountering on behalf of a client in the political arena.
“I also generally remember being aware that he had used the threat of defamation litigation for tactical advantage and had filed and threatened meritless claims of defamation in the past.”
Elias, who had chaired Perkins Coie’s political law group since 2009, established his law firm Elias Law Groups in September 2021.
Therefore, he wrote, conversations between Fusion GPS and its clients, even if it did not directly involve lawyers, are all related to why it was hired—to provide ammunition in response to anticipated litigation from Trump.