Durham Prosecutor Brittain Shaw Gets Cute with Forfeited Claim

John Durham prosecutor Brittain Shaw just submitted a bunch of FEC filings from a settlement the Democrats reached in February; as with other documents designed to rile up the frothy right, she claimed the document was meant to be filed under seal but submitted it to the public docket.

In the settlement, Democrats agreed to pay a fine because they did not list the purpose of Perkins Coie’s Fusion payments as opposition research.

In her filing, Shaw claimed that conciliation agreement and the exhibits to it “were made public” on April 28.

The Government, by supplementing its motion with the attached exhibits, seeks to provide notice to the Court of a Federal Election Committee (“FEC”) conciliation agreement with the Democratic National Committee (“DNC”) and the Hillary for America Campaign (“HFA”), and the FEC’s supporting findings, which were made public on April 28, 2022. Specifically, the FEC found “probable cause to believe” that the DNC and HFA improperly reported their payments to Perkins Coie for Fusion GPS’s opposition research as “legal and compliance consulting.” [my emphasis]

That’s a dishonest claim — though a necessary one to excuse Durham not raising this issue in his April 6 motion to compel or his April 25 reply.

The FEC’s supporting backup may have only been posted last week (though the backup relies on the same kind of evidence, like billing records, that Durham already has).

But the settlement, with the language about “probable cause,” was first reported on March 30 and widely covered; most stories with links to the letter informing the complainant, which included the conciliation agreements that Shaw includes in her claim stating that this documentation only became available last week. As the letter to Marc Elias’ law firm sent on March 29 noted, “these matters are now public.”

And it has been discussed in the right wing press particularly as it pertains to this privilege challenge already. Kim Strassel dedicated an entire paragraph to it on April 21, well before Durham’s scheduled reply.

These are a few of the difficulties the parties face in trying to pound the oppo-research peg into the legal-services hole. Mr. Durham also got an assist from federal regulators. Last month the FEC fined the Clinton campaign and the DNC $8,000 and $105,000, respectively, for violating strict rules on disclosure. The FEC noted that Perkins Coie in 2016 hired Fusion to “provide research services” and improperly reported the work as “legal services.” The campaign and DNC made the same argument—that Fusion’s work was in support of legal advice—but settled with the FEC. (A DNC spokesperson told the Washington Post it had agreed to settle “silly complaints from the 2016 election.”)

Some other right wing outlet did an entire piece focused on this settlement, explicitly expecting Durham to raise it in his reply.

Shaw was dishonest about more than the availability of this information last month, and therefore the fact that Durham has forfeited this claim. She also did not mention that the backup notes that the Democrats still claim privilege over the Fusion work and the conciliation agreement did not concede the point. Notably, I believe “purpose” is defined differently under campaign finance law and under the precedents at issue here.

This is a totally hackish attempt to include this issue in a way that Durham can rely on it on appeal. But the claim that this settlement (as opposed to the underlying backup) hasn’t been available to prosecutors since they first tried to pierce the Democrats’ privilege is thoroughly dishonest as to the plain meaning of the claim.

30 replies
  1. Dr Noisewater says:

    So this is the 3rd or 4th attempt to post stuff “under seal” to docket? How can that keep happening with no repercussions, especially when the judge brought it up last time iirc

    • Rugger9 says:

      As noted above in the main post, this is not about prosecution but publicity. However, one would think that any self respecting judge (and Judge Cooper appears to be one) would take a very dim view of the repeated violations of his instructions, and though IANAL I would certainly demand sanctions / Bar referrals for the continued flouting of the court’s procedure.

    • Leoghann says:

      It’s like having the same grandmother die three times in one semester. Absolutely sophomoric.

  2. obsequious says:

    “Shaw was dishonest about more than the availability of this information last month, and therefore the fact that Durham has forfeited this claim.”

    Can you elaborate on this? The supplement that was provided to the court was the public report from the general counsel of the FEC released on April 28th. How would the judge be able to rule without having access to the report? Are you suggesting that Durham should have subpoenaed the FEC after the settlement but before the public release?

    If Durham interfered before the settlement, wouldn’t that be interpreted as Durham unduly influencing the outcome of a bureaucratic process outside his jurisdiction?

    • emptywheel says:

      Can you point to the English words you did not understand in this post and we can walk you through them?

      Or perhaps the numbers that appear in dates?

      • subtropolis says:

        Why not start with the quoted words which obsequious prefaced the comment with? The ones for which you’ve (politely!) been asked to elaborate upon.

        It seems to me (and, perhaps, obsequious) that you are making far too much over some (only somewhat) poor grammar. Perhaps a semi-colon was called for, but the offense is hardly something for which claims of dishonesty is merited.

        I’ve enjoyed seeing you tear apart Durham’s case, and agree that it is bullshit. However, where we part is in agreement over whether there is some niggling there there. That it is bullshit — and utterly pales in comparison with the rank shitbaggery that the Other Side gets away with on the daily — is unquestionable. But you seem to be grasping at straws when you already have a bundle in hand.

          • subtropolis says:

            Were you bullied as a child? Or do you just contribute here whilst drunk? Your so-called moderation of this site is turning the comments section into a shitpile of grievance. Get a fucking grip already.

            [Knock it off. This is a SECOND REQUEST; you were warned on 4/29 to quit poking at moderation. Posts related to Durham draw concern trolls who are intent on DDoSing threads with poorly researched and poorly reasoned comments and your mixing it up with a moderator doesn’t help. Just stop. /~Rayne]

  3. WilliamOckham says:

    This is super nitpicky, and I can’t resist. Sussman needs to hire someone who knows how to use widow/orphan control in Microsoft Word. That last line on page one is pitiful.

    • Silly but True says:

      You can’t hold it against her too much, Brittain is a fraud attorney, not a typist.

      • Scott Johnson says:

        Is she a fraud attorney in the same way that Saul Goodman is a criminal lawyer?

        • Silly but True says:

          Haha! No, sorry. Some of her expertise is in prosecuting cases against people trying to defraud the US government.

    • emptywheel says:

      Durham, not Sussmann.

      But widow/orphan control are the least of Durham’s problems.

    • TooLoose LeTruck says:

      Widow/orphan control?

      Sounds like the title of a ministry from a Dickens novel, or perhaps Monty Python…

      The Ministry of Widow and Orphan Control…

        • TooLoose LeTruck says:

          That would be a party worth attending…

          I would love to hear John Cleese and George Orwell get it on…

  4. Cosmo Le Cat says:

    Definition of obsequious:

    “obedient or attentive to an excessive or servile degree.”

    An appropriate name for the person posting misleading misinformation and false assertions on a site dedicated to understanding the truth. We can guess whom Obsequious is servile to.

    • bmaz says:

      And, I might note, that the definition being apt has been pointed out before here, and to no avail as “obsequious” remains obsequious.

      • Doctor My Eyes says:

        Since Dickens has been mentioned, this made me think of Uriah Heep. I appreciate that there was only one, near perfect, response.

  5. David2022 says:

    Just to bring this full circle: Minute Entry for Motion Hearing held before Judge Christopher R. Cooper as to MICHAEL A. SUSSMANN (1) on 5/4/2022, re Government’s 64 Motion to Compel Production of Documents for In Camera Review. Oral arguments heard and GRANTED. Bond Status of Defendant: remains on Personal Recognizance Bond (PR). Court Reporter: Lisa Moreira. Defense Attorneys: Michael Bosworth, Sean Berkowitz, Catherine Yao, and Natalie Hardwick. US Attorneys: Andrew DeFilippis, Michael Keilty, Deborah Shaw, and Jonathan Edgar Algo, III. Intervenor Attorneys: Joshua Levy for Fusion GPS and Robert Trout for Hilary for America. Movant Attorney: Steven Tyrrell for Rodney Joffe. (zsmc) (Entered: 05/04/2022)

    • emptywheel says:

      Yup. I’m going to write it up after I write up Oath Keeper developments.

      The actual transcript shows it may not work out the way Durham thinks, in many ways.

      And Shaw’s dishonesty may play a factor in that.

  6. Ken says:

    I try criminal jury trials. Other than evidence, the second most important thing is the 12 people who are picked for the jury. This entire case revolves around the investigation of Donald Trump for Russian ties. For the jury, the alleged lie by Sussman will be a minimal part of the case. This will be a DC jury. Trump got 5.4% in DC during the 2020 election. After the jury comes back with a not guilty, these prosecutors need to be reassigned to Idaho or Wyoming.

    • bmaz says:

      I do too, and agree with most all of that, especially the part about evidence. And “evidence” is not always what people think it is; once you have a jury, the only evidence that matters is what they hear. The public following trials outside the actual courtroom rarely understand this. I do not, however, think Judge Cooper will allow the trial to be about, nor focused on, Trump. And he should not.

      Welcome to Emptywheel, and please join in again and more often. The discussion here is pretty good, you would like it. Ken is a pretty common name though, perhaps distinguish it a bit in the future when, hopefully, you come back.

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