Even though a federal judge in the Michael Sussmann case ruled that Fusion GPS should turn over at least 22 emails for Special Counsel Durham, the latter will not be able to use them at trial, scheduled for 16 May.
Earlier, John Durham filed a motion to compel opposition research firm Fusion GPS to provide the court, for in camera review, 38 emails and attachments. These 38 files are among approximately 1,500 documents that Fusion GPS withheld from production to the grand jury, citing “privilege.”
On 12 May, Judge Christopher Cooper ruled that there is no valid basis to withhold 22 out of the 38 emails, while confirming that 16 emails will remain privileged.
At the same time, the judge drew attention to the fact that the special counsel blew his deadlines: even though negotiations between Durham and Fusion GPS ended in January 2022, he waited to file his motion "until over a month before trial was set to begin."
"Under these circumstances, allowing the Special Counsel to use these documents at trial would prejudice Mr. Sussmann’s defense," Judge Cooper explained. "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. The Court therefore will not, as a matter of principle, 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."
He concluded that Durham's team "will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege."
Still, Cooper highlighted that the court "takes no position on the other approximately 1,500 documents that Fusion GPS withheld as privileged," given that they are not the subject of Durham's recent motion. The judge added that "the Court will apply the principles set forth above to any assertions of privilege during witness testimony at trial."
Commenting on Cooper's decision, some US legal observers suggest that given that the court found the 22 non-privileged emails not "particularly revelatory," the judge's decision to prohibit Durham from using them may not matter in the grand scheme of things.
"[T]he 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," writes Margot Cleveland, The Federalist's senior legal correspondent. "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."
At the same time, given that 16 emails have been withheld, it is unclear what portion of the 1,500 files will be left for Durham to use in his case, Cleveland added. "Whether [the May 12] ruling represents an overall loss to Sussmann or the special counsel is yet to be seen," according to her.
On 16 September 2021, Sussmann, a former Perkins Coie partner, was accused by the special counsel of lying to the FBI concerning research into alleged back-channel communications between Russia's Alfa Bank and the Trump Organisation. Sussmann told the bureau that his research had not been done on behalf of any client, while Durham argues that the 2016 Hillary Clinton Presidential Campaign and Rodney Joffe hired Sussmann to do the job. The bureau later concluded that the Trump-Alfa Bank allegations were unsubstantiated.
Communications between the Clinton campaign, Fusion GPS, Perkins Coie, and Rodney Joffe are of special interest to Special Counsel Durham, as they could shed light on how the process of dirt-digging on then-presidential candidate Donald Trump evolved. For their part, the aforementioned parties have been trying hard to convince presiding Judge Christopher Cooper to keep their communications confidential, citing "attorney-client" privilege and "work-product" privilege.
On 28 April, Hillary for America (HFA) – the committee organising Clinton’s 2016 presidential campaign – filed a motion insisting that documents related to Perkins Coie’s communications with the DNC and the Clinton campaign should be withheld, arguing attorney-client privilege. On 4 May, Judge Cooper granted Durham’s motion to compel production of unredacted versions of documents from Perkins Coie, Rodney Joffe, and Fusion GPS for review, paving the way for the judge to decide whether he gets none, some, or all of the files.