Durham Questions Clinton Campaign’s Privilege Claims, Demands Court Review Them

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Michael Ginsberg Congressional Correspondent
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Special Counsel John Durham requested in a Wednesday filing that a federal judge review claims of attorney-client privilege issued by Hillary Clinton’s 2016 presidential campaign, the Democratic National Committee and several other entities.

The Clinton campaign and DNC have withheld documents issued by the Perkins Coie law firm under claims of attorney-client privilege, Durham explained in the filing submitted as part of former Perkins Coie attorney Michael Sussmann’s indictment for allegedly lying to the FBI. He argues that the documents should not be covered because they relate to Perkins Coie’s hiring of Fusion GPS to conduct opposition research on then-candidate Donald Trump and not the law firm’s provision of legal advice.

Both the DNC and the Clinton campaign were recently fined by the Federal Election Commission for claiming that payments to Perkins Coie were for legal consulting and not opposition research.

Durham also lists documents held by Fusion GPS and former Neustar executive Rodney Joffe as being withheld under claims of privilege. (RELATED: ‘Absurd’: John Durham Filing Roasts Ex-Clinton Lawyer’s Attempt To Get Indictment Dismissed)

Fusion GPS in particular “has withheld approximately 1,455 documents that are responsive to the subpoenas based on claims of attorney-client privilege and attorney work  product protections,” according to the filing. However, “the vast majority of the entries reflect communications with no lawyer listed as a sender, recipient, or copied party,” Durham wrote.

Federal prosecutors frequently assert that defendants abuse claims of attorney-client privilege. For instance, Justice Department lawyers recently accused Google of improperly invoking privilege to shield emails requested as part of an investigation into alleged anti-competitive practices.

In cases involving privileged materials, a federal judge may review them, or appoint an official known as a special master to do so. A special master was recently appointed in a case involving Project Veritas to review documents seized by the FBI that Veritas claims are protected journalistic material. A special master was also appointed to review materials seized from Rudy Giuliani that Giuliani claims should be protected by attorney-client privilege.

In this case, Durham is requesting that a judge review the documents and then release them to the government if they are not truly covered by attorney-client privilege.

Sussmann is charged with one count of lying to federal officials for his claim to FBI General Counsel James Baker that he was not working on behalf of a client when he alleged that the Trump campaign had a covert communications channel with the Moscow-based Alfa Bank. Sussmann was a partner in Perkins Coie’s cyber division at the time he made the allegation. Perkins Coie’s political division, then-headed up by prominent Democratic lawyer Marc Elias, represented the Clinton campaign during the 2016 election.