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Fusion GPS attorney-client privilege coverage

America, meet Simpson, Fritsch & Oppo – the newest, if not the most reputable law firm in the country. At least, that’s what the purveyors of the Russia collusion scam are now selling to the judiciary, part of a last-ditch effort to hide the truth about their actions.

Readers are familiar with Glenn Simpson and Peter Fritsch as co-founders of Fusion GPS, the opposition research firm hired by the Hillary Clinton campaign and the Democratic National Committee (through the law firm Perkins Coie) in 2016 to concoct the infamous “dossier” against Donald Trump. A grand jury appointed by Special Counsel John Durham indicted Perkins Coie’s partner Michael Sussmann last year for false statements related to his efforts to feed such filth to the FBI. Mr. Sussmann pleaded not guilty.

This month, Mr. Durham asked a federal judge to force Fusion, the DNC and the Clinton campaign to turn over documents for the judge to review in chambers. The filing states that Fusion GPS sits on approximately 1,455 documents affected by its subpoena. The Clinton campaign and DNC claim privileges over communications between Fusion and Rodney Joffe, a technology executive who the Durham team said used his position to access non-public Internet data to frame allegations against Mr. Trump.

On what grounds do the parties refuse to submit the documents? In a flood of files Tuesday from Fusion GPS, the Clinton campaign, the DNC, Mr. Joffe and Perkins Coie, they state that – contrary to public records, depositions, news articles, books and the findings of federal investigators – Fusion stands was not made to conduct Oppo research, but to “assist” Perkins Coie’s “legal advice” to Democrats, and his documents are therefore covered by attorney-client privilege.

This absurd claim is the only refuge left to the first high-level campaign called upon to channel its political operations through a law firm. For years, Democrats and Republicans alike have listed controversial contractors as “legal services” to avoid disclosure, and the practice is now visible after the Clinton campaign made the reckless decision to take the tactic to the extreme by using the FBI got involved and provoked a national crisis. Mr. Durham is doing the double duty of exposing the Russia hoax and exposing a longstanding Washington fraud.

Which puts the document hiders in a difficult legal position. Not every communication emanating from a lawyer is privileged. As the Durham team notes, Perkins Coie was hired by the Clinton campaign and the DNC to advise on compliance with Federal Election Commission regulations, state election issues, and possible recounts. Nowhere in the agreements is there a provision for the services of Oppo Research or Media Relations – activities which are not privileged and which Mr Durham says formed part of the law firm’s billed hours.

Then there is the long record of Fusion’s actual work, documented by Fusion itself. Notably, when asked at a Senate hearing in August 2017 to describe his campaign work, Mr Simpson did not respond with “legal advice”. He said he was hired to provide an “unlimited look” at Mr. Trump’s “business,” “finance,” and “associations.” He said he was not given a “specific assignment”. This is supported by dozens of subsequent media reports – many citing members of the Fusion Perkins-Clinton orbit – describing Fusion’s work in compiling and publishing the dossier. Mr. Durham notes that of the 1,455 documents Fusion refuses to release, only 18 even “involve an attorney.”

In their 2019 book Crime in Progress, Messrs. Simpson and Fritsch brag that Perkins Coie hired them to investigate Mr. Trump. Which points to another problem: it’s hard for Fusion and others to claim their work product is privileged when they make it available to the press and agencies and benefit from a book that openly describes internal discussions with Perkins Coie.

These are some of the difficulties the parties face when trying to peg Oppo research into the legal services hole. Mr. Durham also received support from federal agencies. Last month, the FEC fined the Clinton campaign and the DNC $8,000 and $105,000 respectively for violating strict disclosure rules. The FEC found that Perkins hired Coie Fusion to “provision research services” in 2016 and incorrectly reported the work as “legal services.” The campaign and DNC made the same argument – that Fusion’s work was to support legal advice – but settled with the FEC. (A DNC spokesman told the Washington Post he agreed to settle “stupid grievances from the 2016 election.”)

Perhaps the strongest indication of weakness is the desperate attempt by all parties this week to prevent the judge from seeing the documents. Parties with valid attorney-client privilege are not afraid of such a procedure, which shields communications from prosecutors (or other adversaries) unless the judge deems them unprivileged.

It also shows that there are communications that Mr. Durham’s targets are afraid to let him see. The dossier story may still have a long way to go.

Write to kim@wsj.com.

(2/14/22) In a new legal filing, the special counsel says a tech company that had access to Trump’s internet communications shared that data with Clinton campaign personnel in 2016. Images: Getty Images/AP/Masterclass/Reuters Composition: Mark Kelly

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Ethan Gach

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