John Durham’s Pyrrhic Privilege Victory

As I predicted might happen, Judge Christopher Cooper has ruled that a chunk of the Fusion GPS emails over which the Democrats claimed privilege are not privileged and ordered Fusion to give the emails to Durham.

Applying the two asserted privileges to the 38 emails it has reviewed, the Court finds that Fusion GPS had no valid basis to withhold 22 of the 38 emails, but that it has met its burden to establish privilege over the remaining 16. The Court analyzes each category separately.


Consistent with this ruling, Fusion is directed to provide the Special Counsel the documents numbered 2–11, 15, 16, 19–21, and 24–30 in the privilege log accompanying the government’s motion by Monday, May 16, 2022.

But because Durham blew all his deadlines, he can’t use these emails at trial.

Based on the above timeline, the Special Counsel waited some eight months after it was aware of the privilege holders’ final position to seek court intervention. See Def’s Resp. at 6–7, ECF No. 71. The Special Counsel responds that it was engaged in good faith discussion with the privilege holders to resolve this issue without burdening the Court. That may well be so, and the Court obviously encourages parties to negotiate disputes on their own. Still, the record shows that these discussions ended in January 2022—yet the Special Counsel waited to file this motion until April 6, 2022, just over a month before trial was set to begin. And, given the number of privilege holders involved and the fact-bound nature of the issues, resolving the motion has naturally taken us to the eve of trial.

Under these circumstances, allowing the Special Counsel to use these documents at trial would prejudice Mr. Sussmann’s defense. See Armenian Assembly of Am., Inc. v. Cafesjian, 772 F. Supp. 2d 129, 158–59 (D.D.C. 2011) (production of documents “on the eve of trial . . . forced Defendants to spend a significant amount of time and resources reviewing these materials instead of preparing their witnesses, rehearsing their arguments, and otherwise preparing”). Although these documents are relatively few in number and do not strike the Court as being particularly revelatory, the Court is not in the best position to predict how new evidence might affect each side’s trial strategy and preparation. The Court therefore will not, as a matter of principle, put Mr. Sussmann in the position of having to evaluate the documents, and any implications they might have on his trial strategy, at this late date. See United States v. Alvin, 30 F. Supp. 3d 323, 343 (E.D. Pa. 2014) (granting defendant’s motion to dismiss indictment on speedy trial grounds, noting that the defendant “was put in the position of requiring” a prior continuance “by the Government’s failure to turn over discovery” until five days before trial); Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (disclosure of evidence on the eve of trial “tend[s] to throw existing strategies and preparation into disarray”)

Accordingly, the government will not be permitted to introduce the emails and attachments that the Court has ruled are not subject to privilege. The Court takes no position on the other approximately 1500 documents that Fusion GPS withheld as privileged, as they are not the subject of the government’s motion. However, the Court will apply the principles set forth above to any assertions of privilege during witness testimony at trial.

Cooper ruled the 8 emails involving Laura Seago and Rodney Joffe are privileged.

Cooper did say these emails were not “particularly revelatory,” so this may not matter in the grand scheme of things. Based on what I’ve seen — as someone who was a Fusion critic before it was fashionable — they believed they were involved in a good faith effort to understand Trump’s ties to Russia and other corrupt actors.

But Durham will now go after 1,500 other Fusion emails in pursuit of his grand conspiracy theory. Which means that unless Durham does something really stupid, we may be stuck with him until he lets all his other statutes of limitation expire.


16 replies
  1. Marinela says:

    we may be stuck with him until he lets all his other statutes of limitation expire.

    What are the deadlines for Durham to review the 1500 Fusion emails? Are they tied to Igor Danchenko trial or could play in Sussmann’s trial?

    These posts are not good for my blood pressure but I appreciate the feedback and context on Sussmann trial, as I don’t see it anywhere else in the media.

    Thank you for keeping us informed.

  2. Peterr says:

    I take this ruling by Cooper to indicate that he is tiring of Durham’s dilatory behavior and flouting of the court’s rulings.


    I also take Cooper’s comments about the other 1500 or so Fusion documents they claimed were privileged, that were not the subject of a DOJ motion to compel, to be a shot across the bow at Durham. “We’re going to trial next week, and since you didn’t properly challenge these 1500 docs by including them in your motion, I’m not going to rule on them. Don’t try my patience by coming back at this point with a motion to compel. Trial starts next week.”

    • Silly but True says:

      I don’t know if you can read anything more into ruling. After today’s ruling there’s just 3 days before the trial is set to start, almost half as long as the cited case law being used when it was ruled too short at 5 days.

      At this point, this is probably one of the easiest rejected discovery motions in the history of rejected discovery motions. The man bites dog revelation would be if Cooper did anything but disallow it’s use at this late stage.

  3. Jeff says:

    Why did the judge even reach the issue of privilege given his conclusion that they couldn’t be used at trial? A trial of Sussman seems like an odd forum for a ruling on privilege asserted by a non-party when the judge has found the documents, privileged or not, cannot be used in the trial.

    • Pam L says:

      There were 2 separate questions before the judge. Although, he could have ruled just on the deadline motion, by ruling on issues raised by both parties, he demonstraed impartiality and reinforced the rule of law.

  4. WilliamOckham says:

    When you say “unless Durham does something really stupid”, do you mean something like deliberately violating DOJ policy with respect to reporters’ testimony? Or would it have to be even stupider than that?

  5. Jared Shoemaker Jr says:

    Is the strategy here just to drag out the investigations and indicting and pre trial as long as possible without actually having a trial? Am I crazy here?

    • Thomas says:

      Bingo! I have long thought that “The Durham Investigation” was always just supposed to be a menacing phantom, with occasional leaks to the press for rightwing frothers.

      I’m sure Barr, Trump and other wackos believe they are entitled to “revenge” for the Mueller Investigation.
      They want to keep on lying, forever, and pretending that the Russian influence investigation was all fictional and fraudulent opposition research.

      But unlike the Mueller Investigation, Durham’s investigation has nothing to find. It’s an ongoing criminal attempt at concealing crimes after the fact and an attempt to punish investigators and lawyers and journalists for doing their jobs.
      It’s meant to be an assertion of authoritarian power over the rule of law, and so it can never establish its false narrative as fact or history.
      It will always be crackpot propaganda and vindictive abusive harassment of innocent people.

      • Jared Shoemaker Jr says:

        Is Durham dumb enough to think that he or his team won’t get in trouble for their actions. Are t there rules and laws against what they are doing?

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