Team Hillary Tries Last-Ditch Attorney-Client Privilege
Special Counsel John Durham has issued subpoenas for members of Hillary For America (her 2016 campaign) and the Democratic National Committee in the case against Michael Sussmann, who, as a Perkins Coie partner, represented them both.
But according to Jerry Dunleavy at the Washington Examiner, Hillary’s campaign, the DNC, Perkins Coie, and oppo research firm Fusion GPS are all fighting Durham’s efforts to compel the submission of documents — unredacted documents — they continue to withhold.
The Burden of Proof in Attorney-Client Privilege
They’re citing attorney-client privilege. As background, here’s what legal analyst Margot Cleveland wrote a few weeks ago about their refusal to turn over documents.
As Durham has pointed out, the party asserting attorney-client privilege has the burden of establishing that the communications in question are, in fact, privileged. “…Merely claiming they are is not enough.”
For privilege to protect a communication, he said, it must be something “that a client conveys to his attorney for the purpose of security for an opinion on law, legal services, or assistance in a legal proceeding.” It can also cover third parties, such as legal assistants, as long as the communication is “for the purpose of obtaining legal advice from the lawyer.” But that’s it.
A Tough Argument for Team Hillary
Durham can’t see the unredacted documents unless the judge has so ruled, so he has asked that they be submitted to the court for an “in camera” review. Cleveland included all the lawyerly details, but her thoughts a few weeks ago can be summarized this way: Presiding Judge Christopher Cooper would likely call for this and provide the Clinton campaign and the DNC an opportunity to argue why the communications are privileged, but that the argument would be very tough.
Even though the burden of proof is on Hillary For America and the DNC, Durham has filed an impressive argument for why these communications are not privileged. But Sussmann’s attorneys fought back Friday in another filing, saying, “The Special Counsel took the astonishing and legally inappropriate step of subpoenaing witnesses for the express purpose of having them testify to the invocation of the attorney-client privilege in front of the jury.” (I’m not a lawyer, but isn’t that just what Cleveland said they’re supposed to do, seeing as how the burden of proof is on them?)
They’re also saying Durham “overreached” in trying to prove “prejudicial allegations he has not charged.” But Durham volleyed back, saying that the “joint venture” he’s investigating “was far from collateral for the charged crime,” meaning they were both part of the same scheme.
This is Getting Good
But now, here’s the best verbal “capture” of this moment in the Durham investigation, which Andrew C. McCarthy calls, “the moment of attorney-client privilege.” McCarthy has outdone himself in his comments on this desperate attempt by the Clinton campaign and DNC to keep their communications secret, and they are a joy to read.
…With yet another special counsel hovering, he writes, and apparently close to concluding that the Hillary Clinton campaign pulled off one of the great political dirty tricks of all time, it’s like we’re right back in the Nineties, wondering what the definition of ‘is’ is.
This is an absolute must-read.
As he explains, the last laugh might be on the Clinton people, because when they argue for attorney-client privilege because Sussmann was their attorney, they’re reinforcing the very charge that Durham has made against him; namely, that he lied to the FBI when he said he was not acting as their attorney. This is really getting good.
Privilege is History
John Solomon also has an update, and he, too, says their effort is likely to backfire. That’s because “the very subjects the Clinton campaign now seeks to protect — such as its now-discredited anti-Trump research — were widely distributed without regard to privilege for years.”
Once a privileged attorney-client communication is spread to third parties, privilege is history.
Alan Dershowitz actually supported Hillary for President in 2016 but dismisses her claims of privilege now. Kash Patel anticipates that Durham will use the crime-fraud exception, saying that “this is an attempt to block information in an ongoing fraud. You cannot use the attorney-client privilege.” Arizona Rep. Andy Biggs, a member of the House Judiciary Committee, calls the attempt “laughable,” considering the many times false Russia collusion claims were shared with third parties. He thinks it might be a delaying tactic.
“I think they’re going to lose on that,” Biggs said. “And, you know, it’s starting to unravel for them pretty quickly. And they just don’t want the truth to come out.”
Mike Huckabee is the former governor of Arkansas and longtime conservative commentator on issues in culture and current events. A New York Times best-selling author, he hosts the weekly talk show Huckabee on TBN.
Originally published at MikeHuckabee.com. Reprinted with permission.
