Durham Asks Court to Force Hillary Clinton’s Campaign to Hand over Withheld Documents
Special Counsel John Durham put Hillary Clinton on notice in another dramatic late-night filing. Durham filed a Motion to Compel Hillary Clinton’s campaign, the DNC, and Fusion GPS to produce material they have all withheld from Durham’s investigation citing “attorney-client” privilege.
The Motion says: “The Government respectfully requests this review because, among other reasons: Non-party entities the Democratic National Committee (“DNC”), Hillary for America (“HFA”), the entity referred to in the Indictment as the “U.S. Investigative Firm,” and the law firm referred to in the Indictment as “Law Firm-1,” have all withheld and/or redacted documents and communications that the government otherwise might seek to admit at trial based on an apparent theory that political opposition research and/or public relations work conducted by the U.S. Investigative Firm at the behest of those entities falls within the legitimate scope of attorney-client privilege and work-product protections.
They have done so despite the fact that almost all of these materials appear to lack any connection to actual or expected litigation or the provision of legal advice. In fact, of the 1,455 documents withheld by U.S. Investigative Firm, only 18 emails and attachments involve an attorney.
During the relevant time period in 2016 and continuing until at least in or around 2021, individuals currently or previously affiliated with the U.S. Investigative Firm, HFA, and/or Law Firm-1 intentionally failed to maintain requisite confidentiality over materials and communications arising from their work relating to the 2016 U.S. Presidential election and, therefore, did not legitimately avail themselves of, or have subsequently waived, the protections of the attorney-client privilege and/or work product doctrines.
In connection with this investigation and the pending trial in this case, the DNC and HFA have asserted attorney-client privilege and/or work product protections over communications solely between a technology executive referred to in the Indictment as “Tech Executive-1” and a person from the U.S.
Investigative Firm whom the Government has subpoenaed to testify at trial, despite the fact that no one from either the DNC or HFA is copied on certain of these communications. Tech Executive-1’s counsel has also claimed privilege over these
The Government respectfully requests that the Court compel third parties to produce to the Court for in camera review certain communications which are currently being withheld from production to the Government based on asserted protections that require scrutiny.
The Government has attached hereto as Exhibit A the redacted documents or privilege log entries pertaining to such documents as to which it seeks the Court’s in camera review.
The first category of documents for which the Government seeks in camera review are select documents that would appear to involve or relate to the U.S. Investigative Firm’s provision of opposition research and media strategy-related services to the HFA, DNC, and/or Law Firm-1.
In particular, the Government (1) attaches a redacted version of the retention agreement between Law Firm-1 and the U.S. Investigative Firm, and (2) lists 38 emails and attachments between and among Law Firm-1, Tech Executive-1 and/or U.S. Investigative Firm employees.
As an initial matter, the DNC and HFA’s claims of privilege over communications involving the U.S. Investigative Firm’s work for those entities during the 2016 Presidential election would appear to stretch and potentially contravene the appropriate bounds of the attorney-client privilege.
The Government does not dispute that the U.S. Investigative Firm conducted opposition research regarding Trump’s purported ties to Russia at the behest of the Clinton Campaign and the DNC through a retention agreement with Law Firm-1.
But in doing so, the U.S. Investigative Firm was not primarily providing or supporting expertise relating to legal advice; instead, it appears that the investigative firm’s primary, if not sole, function was to generate opposition research materials that the firm then shared widely with members of the media, the U.S. State Department, the Department of Justice, the Federal Bureau of Investigation (“FBI”), members of Congress, and others.
These efforts resulted in numerous media articles and reports in the period before and after the U.S. Presidential election.
Perhaps most notably, the U.S. Investigative Firm retained a United Kingdom-based investigator (“U.K. Person-1”) who compiled information and reports that became a widely-known “dossier” containing allegations of purported coordination between Trump and the Russian government,” the motion says.
THREAD: Breaking. Durham files Motion to Compel Clinton Campaign, DNC, and Fusion GPS to produce material w/h based on “attorney-client” privilege. pic.twitter.com/tOsxcFwNfI
— Margot Cleveland (@ProfMJCleveland) April 7, 2022
2/ In sum, Durham wants the documents w/h identified in appendix to be given to court to decide if privilege. (Reading while tweeting so bear with me). First main argument is that Fusion wasn’t retained to help w/ legal advise but to get dirt & that isn’t protected. pic.twitter.com/FaAIkMJOzT
— Margot Cleveland (@ProfMJCleveland) April 7, 2022
