Special Counsel John Durham continues his focus on Hillary Clinton

OPINION: This article contains commentary which may reflect the author's opinion

A high-ranking official from the Clinton Campaign has been questioned by Special Counsel John Durham about Fusion GPS’s activities on behalf of the Democratic nominee, including the Clinton Campaign’s Chair (most likely John Podesta from the Clinton campaign).

Durham’s investigation now confirms one of Durham’s key avenues: whether the Hillary Campaign and Hillary for America participated in a conspiracy to pass false information to the FBI and other government agencies.

In his latest filing, Durham further clarified that Hillary for America, the Hillary Clinton Campaign, and former members of that campaign were engaged “in matters before the Special Counsel.”

Apparently, now included in those “matters” is the Alfa Bank data (the alleged covert communications between Alfa Bank and the Trump Organization). Another filing from Sussmann’s lawyers (April 8, 2022) noted the importance of this data, where Special Counsel Durham wrote to Sussmann’s lawyers to that effect on March 30, 2022.

In that letter, the Special Counsel clarifies that Sussmann’s attorneys may not “offer evidence, or engage in questioning, that would imply, assert, or seek to prove the authenticity of the relevant DNS data or the actual truth of the allegations at issue concerning a secret channel of communications between the Trump Organization and Alfa Bank.”

Additionally, it was a warning. It is possible that Sussmann’s attorneys would try to prove the accuracy of the Alfa Bank/Trump data, but the Special Counsel’s expert will be prepared to testify that it has been falsified:

In that statement, the Special Counsel has provided the most compelling evidence thus far of spoofed information being used to deceive the FBI and the press regarding the Alfa Bank/Trump data. This would seem to be the culmination of a conspiracy.

On a related note, what other “matters” might Durham be referring to besides Alfa Bank?

To begin with, Hillary for America and the Hillary campaign need to know whether Charles Dolan (Clinton’s long-time friend and the Steele dossier’s main, secondary-source, Igor Danchenko) knew about, or directed his activities. Dolan appears to have testified to a grand jury on these topics.

The court was informed by Durham that Igor Danchenko’s (Steele’s main, secondary-source) trial might encompass the following matters:

  • Information regarding the veracity of the Fusion GPS reports sourced by Danchenko that the Clinton campaign knows about or does not know about.
  • Whether the Clinton Campaign was aware of Danchnko’s methods of collecting information, or not.
  • Whether the Clinton Campaign, Fusion GPS, and/or Steele had meetings or communications regarding Danchenko.
  • An assessment of Dannenko’s knowledge or lack thereof about the Clinton Campaign’s involvement in and activities surrounding the Fusion GPS reports.
  • Amount of involvement of the Clinton Campaign or its personnel in Danchenko’s activities.

Consider a hypothetical scenario where the Clinton Campaign attempted to traffic false information to the FBI and DOJ through the Steele dossier and Alfa Bank allegations.

What’s the point of going to such lengths and risking criminal exposure? With Hillary likely to win, what’s the point?

The most likely explanation stems from the DNC hack.

We discussed Durham’s motion to compel the production of documents (regarding Podesta) in our previous post. Durham is seeking documents from the Democratic National Committee (DNC), Hillary for America, Fusion GPS, and Perkins Coie. All of them have “withheld and/or redacted documents and communications” from Durham. As an example, Fusion GPS refused to release 1,455 documents.

Hillary for America and the DNC has also alleged privilege over communications between Rodney Joffe (“Tech Executive-1” in the Sussmann indictment) and Fusion GPS – despite neither party being attached to the e-mails. Durham writes that Rodney Joffe, “has asserted his Fifth Amendment right against self-incrimination over any responsive documents within his personal possession, custody, or control.”

What is Durham’s exact request for the Clinton Campaign? Consider these examples:

  • Perkins Coie and Fusion GPS’s unredacted contract.
  • Approximately 38 emails with attachments between and among Perkins Coie, Rodney Joffe, and/or Fusion GPS employees.
  • Fusion GPS communications with Rodney Joffe regarding the Alfa Bank allegations.

It would appear that DNC, et al., are claiming a privilege based on the fact that Fusion GPS or Rodney Joffe have done work anticipating litigation. Courts will examine whether a document is prepared “in anticipation of litigation” by asking if the document can reasonably be said to have been procured or prepared by reason of the prospect of litigation. FTC v. Boehringer, 778 F.3d 142, 147 (D.C. Cir. 2015).

Because of the work-product doctrine, Perkins Coie included the phrase “potential and/or on-going litigation” in its contract with Fusion GPS. By doing so, they anticipated that the work-product privilege might be invoked. It was Fusion GPS that argued this right when it was sued by the Alfa Bank owners.

It is likely that the court will order the DNC, Hillary for America, Fusion GPS, and Perkins Coie to turn over the documents requested by Durham as their arguments are weak in support of “privilege.”

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