The firm that conducted opposition research on then-candidate Donald Trump for his rival Hillary Clinton must give nearly two dozen emails they claimed were protected by privilege to special counsel John Durham’s team, a judge ruled on May 12.
Prosecutors, though, cannot use the messages at the upcoming trial of former Clinton campaign lawyer Michael Sussmann.
The firm, Fusion GPS, withheld some 1,500 documents from Durham after the special counsel in 2021 issued a subpoena as he was building a case against people involved with triggering the government’s investigation into claims Trump and his campaign colluded with Russia.
Prosecutors in April contested the withholding of 38 emails, arguing they were improperly being withheld. Clinton’s campaign, which hired Fusion through a law firm, asserted attorney-client and work product privilege over the missives.
In his ruling, U.S. District Judge Christopher Cooper, the Obama appointee overseeing the case, said Durham’s team was correct with regards to 22 of the emails.
Based on evidence in the case, including the judge’s closed-door review of the 38 emails, Fusion employees took part in work that does not fall under the asserted privileges, Cooper said.
“Based on non-privileged emails that Fusion did produce to the grand jury, and on the withheld emails the court has reviewed in camera, it is clear that Fusion employees also interacted with the press as part of an affirmative media relations effort by the Clinton campaign. That effort included pitching certain stories, providing information on background, and answering reporters’ questions,” he said.
“Some of the emails at issue—including 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—relate directly to that undertaking. And because these emails appear not to have been written in anticipation of litigation but rather as part of ordinary media-relations work, they are not entitled to attorney work-product protection.”
The emails, which appear to relate solely to spreading the opposition research Fusion compiled, also cannot be shielded by attorney-client privilege, the judge added.
He ordered Fusion to supply Durham with the documents by May 16.
Fusion did not respond to a request for comment.
Fusion does not have to produce the remaining 16 emails—eight internal Fusion communications that may be privileged, and eight emails between technology executive Rodney Joffe and Sussmann, including Fusion employee Laura Seago—because the court can’t say whether they related to helping the Clinton campaign’s law firm or Sussmann with legal matters.
Joffe hired Sussmann ahead of the 2016 election. Sussmann brought information on behalf of Joffe to the FBI regarding allegations concerning Trump’s business and a Russian bank that were later deemed false by the CIA. Sussmann was charged with lying to the FBI when he said he was not bringing the information on behalf of a client. Sussmann is set to go on trial on May 16.
Because Durham’s team waited so long to try to compel the production of Fusion’s emails—they were withheld in August 2021, and discussions on their possible production ended in January, three months before the motion to compel was filed—prosecutors cannot use the missives they will receive from Fusion in Sussmann’s trial, Cooper ruled.
“The court generally agrees with the defense that the government waited too long to compel production of the withheld emails,” he said. “Under these circumstances, allowing the special counsel to use these documents at trial would prejudice Mr. Sussmann’s defense.”
“Although these documents are relatively few in number and do not strike the court as being particularly revelatory, the court is not in the best position to predict how new evidence might affect each side’s trial strategy and preparation,” he added.