Another good but long article by Dr. Margot Cleveland, shortened, read the full article
Will The Court Allow The Special Counsel To See Clinton Documents?
Late Wednesday, Special Counsel John Durham filed a motion to compel the 2016 Hillary Clinton campaign, the Democratic National Committee, Fusion GPS, and Perkins Coie to provide the judge presiding over the Michael Sussmann criminal case copies of unredacted documents previously withheld from the government….
Here’s what you need to know about yesterday’s filing.
First, the Background
Durham charged former Clinton campaign attorney Sussmann in September of last year in a one-count criminal indictment, alleging Sussmann lied to former FBI General Counsel James Baker when Sussmann shared data and white papers purporting to connect Trump to the Russia-based Alfa Bank. Sussmann allegedly told Baker he was sharing this “intel” on his own and not on behalf of any client. The indictment, however, charged that Sussmann in fact was acting on behalf of both the Clinton campaign. Special counsel’s office served various subpoenas.. Joffe refused to provide the subpoenaed documents, asserting his Fifth Amendment right against self-incrimination….
Next, the Law
As Durham’s motion explains, attorney-client privilege protects communications “that a client conveys to his attorney for the purpose of security for an opinion on law, legal services, or assistance in a legal proceeding.” Such communications cannot be subpoenaed; the government also cannot question a witness about the content of such discussions. However, the party asserting the privilege has the burden of establishing that the communications are, in fact, privileged, and merely claiming they are is not enough.
Durham Wants the Documents, But Not Quite Yet
While Durham argues in Wednesday’s motion to compel that the redacted documents are not protected by attorney-client privilege, he acknowledges that without reviewing the content of the material, that assessment cannot be fully made. Thus, at this point, the government first seeks a court order compelling the third parties to provide the unredacted documents to the court for an “in camera” review, meaning a confidential review by the court.
Clinton and the DNC in the Hot Seat
As noted above, the party advancing a claim of privilege bears the burden of establishing the communications are protected. That means that if they wish to preserve their privilege, the now-defunct Clinton campaign and the DNC will need to show why those communications are privileged.
It Was a Hit Job, Not a Legal One
To the contrary, Durham argues that Fusion GPS’s “primary, if not sole, function” appears to be “to generate opposition research materials that the firm then shared widely with members of the media, the U.S. State Department, the Department of Justice, the Federal Bureau of Investigation (“FBI”), and members of Congress.”…
Sussmann Might Have Something to Say Too
While the motion to compel filed last night speaks only to the third parties who hold the privilege and the unredacted documents, Sussmann’s attorneys will likely weigh in too, repeating the complaint they made during last week’s status conference that followed the hearing on Sussmann’s motion to dismiss…
https://thefederalist.com/2022/04/07/will-the-court-allow-special-counsel-john-durham-to-see-clinton-campaign-documents/