Special Counsel John Durham continues his focus on the Hillary Clinton Campaign

And: John Podesta has been interviewed.

Special Counsel John Durham has asked high ranking officials from the Clinton Campaign and Hillary for America, including the Clinton Campaign’s Chair (who we believe to be John Podesta¹), about their awareness of the activities conducted by Fusion GPS on Hillary’s behalf.

This confirms an important avenue of Durham’s investigation: whether the Hillary Campaign or Hillary for America were part of a conspiracy to traffic false information to the FBI and other governmental entities.

While we reported on this development back in December, Durham’s latest filing (available here) provides context to his statement that Hillary for America, the Hillary Clinton Campaign, and former employees of that campaign were involved “in matters before the Special Counsel.”

Those “matters” apparently now include the Alfa Bank data (the purported secret communications between Russian Alfa Bank and the Trump Organization). The importance of this data was suggested in another filing (April 8, 2022), where Sussmann’s lawyers provided to the Court a March 30, 2022 letter from Special Counsel Durham to Sussmann’s attorneys.

That letter addresses the Special Counsel’s understanding that Sussmann’s lawyers would 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.”

It also served as a warning. Should Sussmann’s attorneys try to establish the accuracy of the Alfa Bank/Trump data, the Special Counsel’s expert would be ready to testify that the data was falsified:

That statement is the strongest thus far that the Special Counsel has determined the Alfa Bank/Trump data was spoofed in order to mislead the press and the FBI. A conspiracy, if you will.

Moving on - besides Alfa Bank, what else might these “matters” referenced by Durham include?

For starters, whether the Clinton Campaign or Hillary for America knew about, or directed the activities of, Charles Dolan (the longtime Clinton ally and the “source” of Steele dossier primary subsource Igor Danchenko). As we noted back in January, we believe that Dolan has testified before a grand jury on these issues.

 Recall that Durham informed the Court that the Igor Danchenko (Steele’s primary subsource) trial might include the following issues:

1. The Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Fusion GPS reports sourced by Danchenko,

2. The Clinton Campaign’s awareness or lack of awareness of Dancehnko’s collection methods and sub-sources,

3. Meetings or communications between and among the Clinton Campaign, Fusion GPS, and/or Steele regarding or involving Danchenko

4. Danchenko knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Fusion GPS reports, and

5. The extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled Danchenko’s activities.

Let’s go with a hypothetical and assume for a moment that the Clinton Campaign was involved in conspiracies to traffic false information to the FBI/DOJ via the Steele dossier and the Alfa Bank allegations. (Still an assumption at this time – beware the danger of false hope. We saw the other side get trapped and humiliated with their promises of indictments.)

Why go to those lengths – and why risk criminal exposure? Especially with polling predicting a near-certain Hillary win?

Dare I suggest it all goes back to the DNC “hack”.

Privilege Issues

One of the filings we discussed above (regarding Podesta) is Durham’s motion to compel the production of documents against the Democratic National Committee (DNC), Hillary for America, Fusion GPS, and Perkins Coie. Each one of these entities has “withheld and/or redacted documents and communications” from the Special Counsel. Fusion GPS, for example has withheld 1,455 documents.

Not to be outdone, Hillary for American and the DNC have asserted privilege over communications between Rodney Joffe (“Tech Executive-1” in the Sussmann indictment) and Fusion GPS – despite the DNC or HFA not being attached to those e-mails. Rodney Joffe, according to Durham, “has asserted his Fifth Amendment right against self-incrimination over any responsive documents within his personal possession, custody, or control.”

What exactly does Durham want from the Clinton Campaign, et al.? Here’s some examples:

1. The unredacted contract between Perkins Coie and Fusion GPS. (View the redacted version here.)

2. “38 emails and attachments between and among” Perkins Coie, Rodney Joffe, and/or Fusion GPS employees.

3. Communications between Fusion GPS and Rodney Joffe relating to the Alfa Bank allegations.

The primary basis of the privilege asserted by the DNC, et al., is that the work-product from Fusion GPS or Rodney Joffe was done in anticipation of litigation. When asking whether a document is prepared “in anticipation of litigation,” courts will look to whether “the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” FTC v. Boehringer, 778 F.3d 142, 147 (D.C. Cir. 2015).

 The protects afforded by the work-product doctrine are the very reason why Perkins Coie referenced “potential and/or on-going litigation” in its contract with Fusion GPS. In other words, they planned ahead for the possibility that this privilege might need to be asserted. (This is the privilege Fusion GPS was asserting when it was sued by the owners of Alfa Bank.)

The good news?

The DNC, Hillary for America, Fusion GPS, and Perkins Coie will likely be compelled by the Court to produce the documents requested by Durham. Their arguments of “privilege” are weak for a number of reasons, including: (1) the work was of a political nature and did not involve legal advice; (2) the work was not done in anticipation of litigation; (3) any privilege was waived, as Fusion GPS, the DNC/HFA, and Perkins Coie all did their part to distribute the information to the press, government officials, etc.

Dates of Interest

Finally, the latest filings provides dates of the Fusion/Perkins contract and the grand jury subpoenas:

April 1, 2016: Fusion GPS enters into a contract with Perkins Coie.

March 22, 2021: The Special Counsel serves Fusion GPS with a grand jury subpoena to produce documents relating to (1) the Alfa Bank hoax, and (2) the use of Russian phones “by Donald Trump and/or individuals affiliated with Donald Trump.” The Russian phone allegations were those brought by Sussmann to the CIA in February 2017.

July 9, 2021: The Special Counsel requests Fusion GPS produce its retention contracts/agreements with the DNC and Hillary for America.

September 16, 2021: The Special Counsel issued grand jury subpoenas to Perkins Coie and Fusion GPS, “requiring them to produce – in redacted form – the documents previously listed on privilege logs prepared by counsel for those entities so that such documents would be available for admission into evidence.”

As to the reason to provide the “privilege” arguments, one can’t help but think that the DNC, the Clinton Campaign, and the rest of them are trying to hid the most damning evidence and incriminating communications.

1. “Clinton Campaign Chair” denotes John Podesta. Some have suggested this is Robby Mook. I disagree. Mook was the Campaign Manager. See this PBS article on how Podesta and Mook have typically been identified.