Why is this stickied? Another "loss" for the "nothing's habbening" crowd.
Brian Cates - Political Columnist ★★★:
Two new filings in the Sussmann case have dropped in the last 30 minutes.
The first sets rules for the trial, media access, public seating, juror security, all the basic stuff that has to be squared away before the trial can start.
Here's that order from Judge Christopher Cooper. It's currently document #128 on the court docket.
First, Cooper lays out the facts that led to his ruling. Durham asked him to do a review of 38 emails from Fusion GPS that had been held back in the face of not just one, but two specific federal grand jury subpoenas.
It was the Clinton campaign that ordered Fusion to assert attorney/client privilege and not hand over these 38 emails and another 1400 or so documents still at issue.
I must say, Judge Cooper shows an extremely good grasp of what the competing arguments are.
Sussmann, PC, HFA, DNC, Fusion all argued these documents should be hidden from the SCO due to A/C privilege.
Durham countered that most of the evidence and the email logs with media show Fusion was involved in 'seeding the media' with stories about the Alfa Bank hoax, and that is not covered by an assertion of a/c privilege.
Let me translate this part from the detached legalese: the defense and intervening parties assertion that all of these emails were covered by a/c privilege because they contained legal counsel & advice was a massive stretch of the truth.
For 16 of the emails, they can make a case that legal advice was being dispensed [though I'm pretty sure the legal advice was flowing FROM the lawyers at Perkins Coie TO the political operatives at Fusion.
But for 22 of them, the Judge could find no rationale whatsoever for claiming this was legal counsel between an attorney and a client.
HFA/DNC/PC/Fusion are claiming that Fusion was doing double duty, not just seeding the media with fake stories about possible connections between Donald Trump and Putin; Fusion was also hired to dispense legal advice about any possible defamation litigation that might arise from their media seeding activity.
Well it's a clever argument. Claim the dirty tricks shop you hired to help make up fake smears of you political opponent was also hired to give you LEGAL ADVICE.
That way all their smear-spreading activity can be covered under the attorney-client privilege.
Judge Cooper points out there is legal precedent for extending a/c privilege to 3rd party firms hired as agents for clients.
But then he points out that extension has limitations to it.
The blue highlighted area is where Judge Cooper gives Marc Elias and Sussmann and HFA and the DNC the bad news.
As you're reading this keep in mind that Fusion is still hiding more than 1400 other documents that have been subpoenaed. And they just got caught by the judge making an 'erroneous' assertion of attorney/client privilege that he is here vacating for 22 of these 38 emails.
This establishes something on the court record.
Guess what it is?
The defendant and the intervening parties will make erroneous assertions a/c privilege to try to keep from complying with a federal grand jury subpoena.
Going forward, there will be consequences for this.
Having explained in great detail and with sound legal reasoning why he is rejecting the claims of the Sussman defense team and the intervening parties assertion of attorney client privilege over 22 of these 38 emails, Judge Cooper orders Fusion to hand over 22 specifically numbered emails to the Special Counsel's Office.
In his review of the 38 emails, Judge Cooper ruled that 16 of them either met the criteria for a/c privilege because of direct statements in the emails or the lack of any evidence they were prepared for an alternative purpose other than giving legal advice or counsel.
The big footnote is where Judge Cooper explains why he rejected the SCO's argument that he should grant a 'wholesale waiver' of a/c priv for all of the outstanding Fusion documents because Glenn Simpson & Peter Fritsch wrote a book and/or because Christopher Steele gave testimony in a UK defamation case.
Judge Cooper's reasoning is that neither the book or Steele's testimony revealed any privileged content; and in the absence of any evidence that it did, he is not granting the SCO's request.
Here's where the Clinton strategy of having lawyers involved directly in the construction of the hoaxes makes Durham's job kind of tricky.
Durham has to establish to the court that there is sufficient evidence to vitiate a claim of a/c priv.
Durham based his claim that this Joffe/Sussmann/Fusion email chain in which Laura Seago was involved had no a/c priv. because of Seago being a party to the communications.
Judge Cooper says Seago being there as a technical expert to give advice informed the legal counsel Sussmann was giving to his client Joffe.
Here's the interesting part: Judge Cooper agrees with the defense that Durham waited too long to file with the court about Fusion's refusal to hand these documents over.
Durham waited 8 months to file with the court about Fusion's assertion of a/c priv.
For this reason the judge is going to give the SCO the documents but Durham may not use them as evidence in Sussmann's trial.
What's interesting here is that in an earlier transcript, the Durham SCO team said one reason they wanted this privilege issue resolved is because of ongoing investigations and they want these documents currently being withheld for future cases.
So basically this is a "You won the documents but you can't use them in THIS trial" ruling. 😬🤷♂️
Let me show you why as far as SUSSMANN is concerned, all of this is moot:
Thanks, that clears up a couple seemingly contradicting rulings. Since the Brian Cates link to why "Durham already has Sussmann cold" requires a opt-out subscription, is there a summary you could make on this?
It’s an even response….. Durham gets about half of what was viewed in camera with reasons being that some do hold client attorney privilege and some others cannot be used as they were too late for a fair discovery process…..
Overall it gives Sussman some hope and Durham future rulings in follow on cases…
Why is this stickied? Another "loss" for the "nothing's habbening" crowd.
Two new filings in the Sussmann case have dropped in the last 30 minutes.
The first sets rules for the trial, media access, public seating, juror security, all the basic stuff that has to be squared away before the trial can start.
Here's that order from Judge Christopher Cooper. It's currently document #128 on the court docket.
https://storage.courtlistener.com/recap/gov.uscourts.dcd.235638/gov.uscourts.dcd.235638.128.0.pdf
The second filing is Judge Cooper announcing the result of the in camera review of the 38 emails.
That ruling is #129 on the court docket.
Here it is:
https://storage.courtlistener.com/recap/gov.uscourts.dcd.235638/gov.uscourts.dcd.235638.129.0_5.pdf
First, Cooper lays out the facts that led to his ruling. Durham asked him to do a review of 38 emails from Fusion GPS that had been held back in the face of not just one, but two specific federal grand jury subpoenas.
It was the Clinton campaign that ordered Fusion to assert attorney/client privilege and not hand over these 38 emails and another 1400 or so documents still at issue.
I must say, Judge Cooper shows an extremely good grasp of what the competing arguments are.
Sussmann, PC, HFA, DNC, Fusion all argued these documents should be hidden from the SCO due to A/C privilege.
Durham countered that most of the evidence and the email logs with media show Fusion was involved in 'seeding the media' with stories about the Alfa Bank hoax, and that is not covered by an assertion of a/c privilege.
Let me translate this part from the detached legalese: the defense and intervening parties assertion that all of these emails were covered by a/c privilege because they contained legal counsel & advice was a massive stretch of the truth.
For 16 of the emails, they can make a case that legal advice was being dispensed [though I'm pretty sure the legal advice was flowing FROM the lawyers at Perkins Coie TO the political operatives at Fusion.
But for 22 of them, the Judge could find no rationale whatsoever for claiming this was legal counsel between an attorney and a client.
HFA/DNC/PC/Fusion are claiming that Fusion was doing double duty, not just seeding the media with fake stories about possible connections between Donald Trump and Putin; Fusion was also hired to dispense legal advice about any possible defamation litigation that might arise from their media seeding activity.
Well it's a clever argument. Claim the dirty tricks shop you hired to help make up fake smears of you political opponent was also hired to give you LEGAL ADVICE.
That way all their smear-spreading activity can be covered under the attorney-client privilege.
Judge Cooper points out there is legal precedent for extending a/c privilege to 3rd party firms hired as agents for clients.
But then he points out that extension has limitations to it.
The blue highlighted area is where Judge Cooper gives Marc Elias and Sussmann and HFA and the DNC the bad news.
As you're reading this keep in mind that Fusion is still hiding more than 1400 other documents that have been subpoenaed. And they just got caught by the judge making an 'erroneous' assertion of attorney/client privilege that he is here vacating for 22 of these 38 emails.
This establishes something on the court record.
Guess what it is?
The defendant and the intervening parties will make erroneous assertions a/c privilege to try to keep from complying with a federal grand jury subpoena.
Going forward, there will be consequences for this.
Having explained in great detail and with sound legal reasoning why he is rejecting the claims of the Sussman defense team and the intervening parties assertion of attorney client privilege over 22 of these 38 emails, Judge Cooper orders Fusion to hand over 22 specifically numbered emails to the Special Counsel's Office.
In his review of the 38 emails, Judge Cooper ruled that 16 of them either met the criteria for a/c privilege because of direct statements in the emails or the lack of any evidence they were prepared for an alternative purpose other than giving legal advice or counsel.
The big footnote is where Judge Cooper explains why he rejected the SCO's argument that he should grant a 'wholesale waiver' of a/c priv for all of the outstanding Fusion documents because Glenn Simpson & Peter Fritsch wrote a book and/or because Christopher Steele gave testimony in a UK defamation case.
Judge Cooper's reasoning is that neither the book or Steele's testimony revealed any privileged content; and in the absence of any evidence that it did, he is not granting the SCO's request.
Here's where the Clinton strategy of having lawyers involved directly in the construction of the hoaxes makes Durham's job kind of tricky.
Durham has to establish to the court that there is sufficient evidence to vitiate a claim of a/c priv.
Durham based his claim that this Joffe/Sussmann/Fusion email chain in which Laura Seago was involved had no a/c priv. because of Seago being a party to the communications.
Judge Cooper says Seago being there as a technical expert to give advice informed the legal counsel Sussmann was giving to his client Joffe.
Here's the interesting part: Judge Cooper agrees with the defense that Durham waited too long to file with the court about Fusion's refusal to hand these documents over.
Durham waited 8 months to file with the court about Fusion's assertion of a/c priv.
For this reason the judge is going to give the SCO the documents but Durham may not use them as evidence in Sussmann's trial.
What's interesting here is that in an earlier transcript, the Durham SCO team said one reason they wanted this privilege issue resolved is because of ongoing investigations and they want these documents currently being withheld for future cases.
So basically this is a "You won the documents but you can't use them in THIS trial" ruling. 😬🤷♂️
Let me show you why as far as SUSSMANN is concerned, all of this is moot:
Durham already has Sussmann cold, evidence wise:
https://briancates.substack.com/p/why-i-believe-michael-sussmann-will?s=w
Thanks, that clears up a couple seemingly contradicting rulings. Since the Brian Cates link to why "Durham already has Sussmann cold" requires a opt-out subscription, is there a summary you could make on this?
It’s an even response….. Durham gets about half of what was viewed in camera with reasons being that some do hold client attorney privilege and some others cannot be used as they were too late for a fair discovery process…..
Overall it gives Sussman some hope and Durham future rulings in follow on cases…
WWG1WGA
Haha, it's good that they make sure to keep up with us.