Hillary for America Trying to Throw Wrench in Durham's Gears, But That Might Not Work

Hillary for America (HFA), the committee for Hillary Clinton’s 2016 presidential campaign, is striving to prevent Special Counsel John Durham from obtaining documents pertaining to law firm Perkins Coie's work with the Democratic National Committee (DNC), Hillary's 2016 campaign and opposition firm Fusion GPS, according to the latest court filing.

On 28 April, Hillary for America (HFA) filed a motion, arguing that certain documents related to Perkins Coie – a law firm which provided legal services to the DNC and the 2016 Clinton campaign – have to be withheld in Special Counsel Durham's case against Perkins Coie lawyer Michael Sussmann based on attorney-client privilege.

On 16 September 2021, former Perkins Coie partner Michael Sussmann was charged with lying to the FBI that his research concerning alleged back-channel communications between Russia's Alfa Bank and the Trump Organisation had been done for him. In reality, the research was conducted on behalf of the 2016 Clinton campaign and a US technology industry executive, identified by US media outlets as Rodney Joffe, according to Durham.

The 28 April document is part of a flurry of motions filed by Hillary for America (HFA), the Democratic National Committee (DNC), tech executive Rodney Joffe, the law firm Perkins Coie LLP, and Fusion GPS, who were unanimously asking the court for permission to argue against disclosing documents to the special counsel because of "attorney-client privilege." Attorney-client privilege is a legal privilege that works to keep confidential communications between an attorney and his or her client secret. Earlier this month, Special Counsel Durham and his team had sought the production of relevant documents in the Sussmann case ahead of a jury trial scheduled for 16 May.

The special counsel on 25 April responded to the aforementioned set of motions arguing that "the purported privilege holders'" claims do not hold water.

"[T]he purported privilege holders who have intervened do so in a case in which the defendant is alleged to have denied representing any client when he brought the Russian Bank-1 [Alfa Bank] allegations to the FBI," Durham wrote.

As Indian-American lawyer Kash Patel explained on Kash's Corner on 29 April, one can't refer to "attorney-client privilege" once the Perkins Coie lawyer Sussmann claimed that he did not have any client.

Similarly, Durham drew attention to the fact that while Perkins Coie and Fusion GPS were citing an "attorney-client" privilege to keep information related to their work and research confidential, there are “hundreds of emails in which Fusion GPS employees shared raw, unverified, and uncorroborated information – including their own draft research and work product – with reporters."

"The attorney-client privilege only exists if it is communication between an attorney and the client," explains Patel. "The second you take that information and give it to the mainstream media, the Yahoo News, the Slate magazine guys, the Wall Street Journal, the New York Times, CNN, and everyone else – attorney-client privilege is gone. So, you can't have it both ways. You can’t say it’s attorney-client privilege, and then sneakily have it sent out to six different media outlets because you want that story, that narrative… out in the mainstream media."

Are Charges of Conspiracy to Defraud the Government at Play Here?

The enthusiastic attempts by HFA, DNC, tech executive Rodney Joffe, Perkins Coie LLP, and Fusion GPS to intervene in Michael Sussmann's case could be explained by John Durham's apparent intent to present the Perkins Coie lawyer case as a "joint venture" by several actors, according to US legal observers.

In his 23 April motion Durham made it clear that he believes that "a joint venture" between Sussmann, Clinton campaign operatives, Fusion GPS and Joffe plainly existed in the case. According to Durham's theory, this "fraudulent scheme" was aimed at inducing the government to investigate Donald Trump "on suspicion of being a clandestine agent of the Kremlin," observes former federal prosecutor Andrew McCarthy in his latest op-ed.

"Durham alleges that this suspicion was essentially a political smear concocted by the Clinton campaign," writes McCarthy. "The initiative of feeding it to the FBI and the media is said to have been engineered by Clinton campaign operatives, including Sussmann and another lawyer at his firm (Marc Elias), as well as opposition researchers at Fusion GPS and such Clinton enthusiasts as Joffe, who had privileged access to Internet communications data."

However, it is still unclear whether or not Durham would charge the individuals apparently involved in the aforementioned "joint venture" with "conspiracy to defraud the government," according to Marc Ruskin, a former FBI special agent and assistant district attorney, as quoted by the Epoch Times. Legal observers don't rule out that Durham would pursue a more modest and narrow goal: to prove that Michael Sussmann indeed lied to the FBI on 19 September 2016 while working on behalf of a group of people digging dirt on Trump.