(…) After the Hillary for America and the DNC’s motions to intervene hit the Sussmann docket, The Coolidge Reagan Foundation penned a three-page letter to Durham and Assistant Special Counsel Jonathan Algor. That letter alerted the special counsel’s office to key facts about the FEC’s recent decision to fine the political groups in relation to a complaint the foundation had filed with the FEC. That complaint charged Hillary for America and the DNC with using the “law firm, Perkins Coie, to hire and funnel over $1 million to ‘outside research firms’ such as Fusion GPS ‘to perform potentially sensitive, controversial, or politically embarrassing’ opposition research into Donald Trump.”
The FEC complaint, filed in 2018, alleged that “the research was not ‘for the purpose of assisting Perkins Coie in providing legal advice,’” but to further the “political and campaign-related goals” of the organizations. The foundation also claimed in its FEC complaint that because the work was not “for the purpose of providing legal advice or assisting with impending or potential litigation, it was not covered by attorney-client, work-product, or other privileges.”
Significantly, as the foundation noted in its April 22, 2022 letter to the special counsel’s office, the FEC had “found probable cause to believe” the political organizations had misreported the purpose of certain disbursements. The FEC reached that conclusion based on a memorandum prepared by the FEC’s Office of General Counsel, but under controlling regulations that memorandum “will not be made public for another week,” the letter explained.
Foundation counsel Dan Backer added that while the memorandum is not yet public, the special counsel’s office would likely be able to obtain it directly from the FEC. That memorandum also will provide Durham’s team further details on the FEC’s investigation and fact-finding that may be useful to the special counsel in the Sussmann litigation, noted the letter.
In Friday’s letter, Backer also highlighted Hillary for America and the DNC’s commitment in their settlement agreement with the FEC to “not further contest the Commission’s finding of probable cause to believe” that the political organizations had “falsely reported their payments through Perkins Coie to Fusion GPS as being for legal services.” In contrast, in the Sussmann case, Hillary for America and the DNC “ are nevertheless asserting materials generated by Fusion GPS and provided to Perkins Coie are protected by attorney-client privilege and work-product doctrine,” the letter stressed.
“The Government should not permit HFA and the DNC to adopt conflicting positions in different proceedings, depending on the federal agency against which they are litigating,” the foundation’s letter concluded, suggesting the trial court may find those breaches of the settlement agreement “material in ruling on any privilege claims.” (Read more: The Federalist, 4/25/2022) (Archive)