Fusion GPS is losing the fight to keep its records secret.
What will Fusion's internal e-mails reveal?
There’s a fight brewing in a DC federal court over Fusion GPS’s internal correspondence and records. And they’re losing.
In 2017, the owners of Alfa Bank (we’ll call them Alfa Bank for the purposes of this article) sued Fusion GPS and Glenn Simpson for their publication of false statements accusing Alfa Bank of “bribery, extortion, and interference in the 2016 U.S. Presidential Election.”
Now, the Alfa Bank is on offense. They have filed a motion to compel, asking the Court to require Fusion GPS and Glenn Simpson to produce nearly 500 critically important documents improperly withheld as privileged.
Fusion/Simpson have fought the production of the documents, arguing that they are subject to the “attorney-client privilege” and otherwise privileged and not subject to production.
These are weak legal arguments – and the attorneys for Alfa Bank recognize it. First, Fusion/Simpson previously admitted the purpose of their work was political, and not for the purposes of any ongoing litigation.
Alfa Bank further observes that Glenn Simpson has even testified that the purpose of his work was pure politics, saying his goal was to “to expose an opponent’s vulnerabilities, provide source material for the media, and feed attack ads.”
As their motion argues:
Perkins Coie did not engage Defendants to perform legal or litigation-focused work; rather, Defendants have admitted (and publicly boasted) that Perkins Coie engaged Defendants in a “political context” to perform “political work.”
Second, even if these 500 documents were subject to the attorney-client privilege (and they most certainly are not), that privilege was waived when Simpson/Fusion leaked their research to third parties, including the media and government officials.
One has to be curious about exactly why Fusion GPS and Glenn Simpson are putting up such a fight to keep these 500 documents hidden. We think it’s because thus far, the public hasn’t seen the communications between Perkins Coie and Fusion GPS/Glenn Simpson or the internal Fusion GPS correspondence.
What are they hiding? Let’s take a look.
During the Alfa Bank litigation, attorneys for Fusion/Simpson have filed “privilege logs,” which give brief explanations on the type of document and the privilege that prevents its disclosure. (Read them here.)
By their very nature, privilege logs don’t reveal much information.
What we see in the latest court filings, however, is that Fusion/Simpson want to keep secret e-mails and attachments that include their ongoing research and likely their internal observations about strategy and the veracity of their work/sources.
For example, recall that Christopher Steele was the source of a Mother Jones article titled “A Veteran Spy has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump.”
The David Corn article (which led to the FBI’s “termination” of Steele as an “official” source) was a cause of a lengthy e-mail chain (excerpt below) at Fusion GPS. This discussion even included the obtuse anti-Trump/Barr writer Lloyd Green. (Not that Lloyd Green is important, but more that the outsider included in the e-mails defeats their privilege argument.)
The privilege log further reveals Fusion GPS correspondence on August 30, 2016 regarding the Alfa Bank/Trump allegations. Internal Fusion GPS e-mails mention the“Alfa Playbook.” Two months later, Slate would run the false allegations that a Trump server having nefarious communications with Alfa Bank servers.
The Slate article would become a popular topic within Fusion GPS.
Additionally, the privilege logs reveal the existence of May 2016 correspondence among Fusion GPS employees/principals, including Glenn Simpson, regarding their early work on Trump/Russia.
Fusion/Simpson are also keeping secret all communications between Fusion GPS and Perkins Coie. This includes an August 26, 2016 update from Peter Fritsch of Fusion GPS to Michael Sussman of Perkins Coie.
That Fusion-Perkins Coie correspondence is notable because Michael Sussman (the Perkins Coie/DNC lawyer) met with FBI General Counsel James Baker weeks later. We suspect, based on our analysis of privilege log, the e-mail Fusion sent Sussman contains research from Nellie Ohr.
The privilege logs show us the early work on the Carter Page research from late July 2016. (This was after the FBI met with Christopher Steele in early July 2016 and before the FBI “officially” opened Crossfire Hurricane.)
Documents filed in support of Alfa Bank’s efforts to compel production of the Fusion GPS records show a timeline of the Fusion leaks to reporters. (Much of this info on the leaks is public knowledge.) This was provided by the attorneys for Fusion/Simpson.
We find it highly likely that Alfa Bank gets their hands on most of the 500 documents they believe to be critically important. The Fusion/Simpson privilege arguments are rather weak.
We’ll continue to follow this case closely. If Fusion/Simpson are required to produce these documents, there’s no telling if Alfa Bank will file them with the court or otherwise release them. But we’ll be publishing them if they do.