{"id":1475133,"date":"2022-05-14T08:29:44","date_gmt":"2022-05-14T12:29:44","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1475133"},"modified":"2022-05-14T08:29:45","modified_gmt":"2022-05-14T12:29:45","slug":"court-agrees-to-let-spygate-cabal-hide-some-of-their-emails-from-grand-jury","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/court-agrees-to-let-spygate-cabal-hide-some-of-their-emails-from-grand-jury\/","title":{"rendered":"Court Agrees To Let Spygate Cabal Hide Some Of Their Emails From Grand Jury"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">28<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fcourt-agrees-to-let-spygate-cabal-hide-some-of-their-emails-from-grand-jury%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1475133&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><\/div>\n<p>Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign\u2019s common interest, a federal judge presiding over the criminal case against Michael Sussmann ruled yesterday. Prosecutors will now be greatly limited in the material they may elicit from one of the two witnesses granted immunity in exchange for their testimony against Sussmann.<\/p>\n<p>Sussmann, whose trial in a D.C. federal court on a false statement charge is set to begin on Monday, scored a victory Thursday when presiding judge Christopher Cooper rejected Special Counsel John Durham\u2019s attempts to present the jury copies of emails previously withheld by Joffe, the Clinton campaign, and the Democratic National Committee as privileged. The ruling came in response to Durham\u2019s motion to compel Fusion GPS to provide the court, for <em>in camera <\/em>review, 38 emails the investigative research firm withheld from the grand jury based on the Clinton campaign\u2019s claim of attorney-client privilege and work-product privilege. The latter protects notes, memoranda, and other communications capturing the mental impressions of an attorney, or those helping an attorney prepare for litigation.<\/p>\n<p>Of the 38 emails, the court held that the Clinton campaign \u201chad no valid basis to withhold 22 of\u201d them. Those emails, the court concluded, did not concern legal advice but involved Fusion GPS employees\u2019 interactions \u201cwith the press as part of an affirmative media relations effort by the Clinton Campaign.\u201d \u201cThat effort,\u201d the court noted, \u201cincluded pitching certain stories, providing information on background, and answering reporters\u2019 questions.\u201d<\/p>\n<p>Among the emails related to the \u201cordinary media-relations work\u201d undertaken on behalf of the Clinton campaign were \u201cinternal Fusion GPS discussions about the underlying data and emails circulating draft versions of one of the background white papers that was ultimately provided to the press and the FBI.\u201d Because those emails were not written in anticipation of litigation, but instead related \u201csolely to disseminating the information they and others had gathered,\u201d the court held the emails were not protected by either attorney-client privilege or work-product privilege.<\/p>\n<p>Although the court held those 22 emails and the related attachments were not protected by attorney-client privilege, Judge Cooper nonetheless concluded that the special counsel\u2019s office waited too long to file its motion to compel. \u201cAs a matter of principle,\u201d the court explained, it would not \u201cput Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date.\u201d Accordingly, the court held, \u201cthe government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege.\u201d<\/p>\n<p>In reaching this conclusion, Judge Cooper noted that the emails did not appear \u201cparticularly revelatory,\u201d suggesting there will be little harm to the special counsel\u2019s case against Sussmann from the court\u2019s ruling that the emails will be inadmissible at trial. And beyond the Sussmann case, the court\u2019s ruling inures to the special counsel\u2019s benefit because it establishes a precedent for Durham\u2019s team to seek access to other communications withheld based on the Clinton campaign\u2019s claims of attorney-client privilege. In total, there were nearly 1,500 other documents Fusion GPS withheld as privileged that the special counsel\u2019s office may move to compel the production of as part of future grand jury proceedings or trials.<\/p>\n<p>While that aspect of yesterday\u2019s ruling proves positive for the broader special counsel\u2019s investigation, the court\u2019s conclusion that 16 of the 38 other emails remain privileged creates larger problems for Durham\u2019s team. Eight of those emails also involved internal communications among Fusion GPS employees, the court noted, but because the court was \u201cunable to tell from the emails or the surrounding circumstances whether they were prepared for a purpose other than assisting Perkins Coie in providing legal advice to the Clinton Campaign in anticipation of litigation,\u201d the court deferred to claims by Fusion GPS\u2019s attorney Joshua Levy and Clinton campaign attorney Marc Elias that the emails related to legal advice.<\/p>\n<p>Given that Elias maintained all the emails were protected by attorney-client privilege, the court\u2019s unquestioningly accepting his word seems strange. And if a court applies the same standard to assess whether the remaining approximately 1,500 emails are privileged, the special counsel\u2019s office may face challenges obtaining much that matters.<\/p>\n<p>But it was the court\u2019s ruling concerning the final eight emails that has the most immediate effect on the special counsel\u2019s office, namely its prosecution of Sussmann for allegedly lying to former FBI General Counsel James Baker. The last eight emails, with attachments, consisted of two email chains initiated by Joffe to both Sussman and Fusion GPS employee Laura Seago. In opposing disclosure of the email threads, Joffe asserted that \u201cthe purpose of the [] communications at issue was to obtain [Fusion\u2019s] assistance in cybersecurity and technical matters to allow Mr. Sussmann to provide [Mr. Joffe] competent, informed legal advice.\u201d<\/p>\n<p>The court held that Joffe\u2019s communications to Sussmann were protected by attorney-client privilege even though the emails included a non-lawyer, Seago, because attorney-client privilege extends to communications by third parties that an attorney hires to facilitate \u201cthe effective consultation between the client and the lawyer.\u201d In reaching this conclusion, the court reasoned that Seago\u2019s \u201cinvolvement related to the technical analysis of the data, which would naturally inform Mr. Sussmann\u2019s advice to his client about the data.\u201d<\/p>\n<p>The court, however, ignored the fact that Fusion GPS, for whom Seago worked, was hired by Perkins Coie to assist the Clinton campaign and the DNC, <em>not<\/em> Joffe. And Joffe did not pay for Fusion GPS\u2019s services, nor did Perkins Coie charge Joffe. Further, as the special counsel noted in its briefing of the issue, \u201cPerkins Coie also had no agreement, contract, or other arrangement reflecting that Fusion GPS was providing services specifically to aid Perkins Coie\u2019s legal representation of [Joffe].\u201d<\/p>\n<p>Nonetheless, the court held the email threads between Joffe, Sussmann, and Seago were protected by attorney-client privilege based on case law holding communications that further \u201ca common interest\u201d are protected. What the court didn\u2019t say, though, but what must be true under privilege law and \u201cthe common interest rule\u201d is that the court believed the communications furthered a common goal of Joffe and the Clinton campaign.<\/p>\n<p>\u201cThe joint defense privilege,\u201d or \u201cthe common interest rule,\u201d is \u201can extension of the attorney-client privilege that protects from forced disclosure\u00a0communications between two or more parties and\/or their respective counsel if they are participating in a joint defense agreement.\u201d The common interest rule \u201cprotects communications between the parties where they \u2018are part of an on-going and joint effort to set up a common defense strategy\u2019 in connection with actual or prospective litigation.\u201d That rule applies to communications subject to the attorney-client privilege, including communications with technical experts retained to assist in the legal defense.<\/p>\n<p>In this case, as prosecutors stressed in their briefing, there was no \u201cformal or informal legal relationship\u201d between Joffe and the DNC and the Clinton campaign. Case law holds, however, that the \u201cparties need not agree in\u00a0<em>writing<\/em>\u00a0to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal.\u201d But \u201cwithout a written agreement, the party\u2019s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.\u201d<\/p>\n<p>Yet, even without a written agreement, the court found a \u201ccommon interest\u201d existed to protect Joffe\u2019s communications with Fusion GPS\u2019s Seago, who was hired by Elias to provide legal support to the Clinton campaign. And what was that \u201ccommon interest?\u201d<\/p>\n<p>According to Joffe, he hired \u201cSussmann to assist him in a specific legal matter \u2013 namely, to advise him how to share sensitive information concerning an extremely litigious Presidential candidate with either investigative journalists or Government agencies without revealing his identity and exposing himself to potential liability, frivolous litigation, and\/or threats of violence and\/or harassment.\u201d<\/p>\n<p>So, in concluding a \u201ccommon interest\u201d existed between Joffe and the Clinton campaign, the court implicitly also found \u201cthe parties have clearly and specifically agreed in some manner to pool information for a common goal,\u201d here the goal of feeding the press and the government the Alfa Bank hoax.<\/p>\n<p>The end results then are that the special counsel\u2019s office cannot compel Fusion GPS to turn over the eight emails between Joffe, Sussmann, and Seago. But yesterday\u2019s holding has broader consequences for the trial because, in closing its 11-page opinion, the court noted that it \u201cwill apply the principles set forth above to any assertions of privilege during witness testimony at trial.\u201d<\/p>\n<p>That means if prosecutors seek to elicit testimony from Seago, or any other employee of Fusion GPS for that matter, on various communications with Joffe, the court could rule the questions out of bounds based on attorney-client privilege. Given that the special counsel was forced to provide Seago with immunity to obtain her testimony at Sussmann\u2019s trial, the court\u2019s ruling yesterday represents a setback to Durham\u2019s case.<\/p>\n<p>Durham does have a few options, including asking the appellate court to resolve the issue of privilege before the trial starts. Prosecutors may instead decide to push forward and play any claim of privilege by Seago on the stand to their advantage, using it as further evidence that Sussmann was representing Joffe and the Clinton campaign when he presented Baker with the Alfa Bank material. They may also point to the \u201ccommon interest\u201d underlying the privilege analysis as proof that yes, there was a joint venture between the Clinton campaign, Joffe, and others, sufficient to overcome the defendant\u2019s hearsay objections to other evidence.<\/p>\n<p>Whether yesterday\u2019s ruling represents an overall loss to Sussmann or the special counsel is yet to be seen, but what is clear is that it is another damning indictment of Hillary Clinton.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Tech executive Rodney Joffe may assert attorney-client privilege for communications he had with employees of Fusion GPS because those communications furthered Joffe and the Clinton campaign\u2019s common interest, a federal<\/p>\n","protected":false},"author":498,"featured_media":2315279,"comment_status":"open","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1475133","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1475133","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/498"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1475133"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1475133\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1475133"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1475133"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1475133"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}