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Trump’s lawsuit against Clinton could keep the origins of the dossier secret

Hillary Clinton and Trump
Credit: ABC News - Walt Disney

Lawyers contend the former president’s new court foray backs their claims of attorney-client privilege.

According to Bloomberg, the sprawling lawsuit filed recently by former President Donald Trump against former rival Hillary Clinton may, accidentally, boost Clinton allies’ ongoing legal efforts to keep details of their anti-Trump political efforts hidden from public scrutiny.

Fusion GPS’s lawyers argued in court filings released Tuesday that the newly filed racketeering suit was their effort to conceal details of the firm’s work with the 2016 Clinton campaign through attorney-client privilege. Trump and his allies have long targeted Fusion, which commissioned the controversial Steele Dossier, which made salaciously and, at times, unsourced allegations about Trump’s ties to Russia.

Top Clinton allies argued in legal papers Tuesday that the details of confidential discussions about the dossier should be kept private, in part because Trump’s famous litigiousness — as evidenced by his new, factually dubious lawsuit — was at the heart of Democrats’ decision to hire Fusion in the first place.

The Clinton campaign and the Democratic National Committee have long claimed that the dossier prepared for Fusion by former British intelligence officer Christopher Steele was part of legal work done by the campaign’s general counsel, Marc Elias. However, Elias has never publicly stated what work he was doing or how Fusion GPS fit into it.

In a court filing related to the criminal prosecution of one of Elias’ former colleagues, Michael Sussmann, for allegedly lying to the FBI, Elias claims that Fusion played a role in his effort to protect the Clinton camp and the DNC from a litigious adversary — Trump — as they prepared to launch a barrage of attacks on his business record and foreign entanglements.

Prior to running for office, Trump had amassed over 7,000 lawsuits, and Elias said Fusion’s research into that litigation history could help protect Democrats from libel suits and similar court claims as they sought to denigrate Trump’s track record.

“I generally recall candidate Trump had been involved in an exceptionally high number of lawsuits — ranging from slip-and-falls to complex bankruptcies and restructuring — more than I recall ever previously encountering on behalf of a client in the political arena,” Elias wrote in a declaration signed Monday. “I also generally remember being aware that he had used the threat of defamation litigation for tactical advantage and had filed and threatened meritless claims of defamation in the past.”

The massive lawsuit Trump filed against Clinton and dozens of former government officials, political operatives, and entities in a Florida federal court last month demonstrates that Elias’ concerns about litigation were far from speculative, lawyers allied with Democratic causes argued.

“Elias had a subjectively (and objectively) reasonable concern about Mr. Trump’s litigiousness given his numerous threats of and actual litigation against his critics,” Fusion GPS attorney Joshua Levy wrote in a brief filed Tuesday. “Indeed, that concern was prescient, with Mr. Trump having recently launched litigation seeking tens of millions of dollars against every interested party here.”

Alina Habba, the attorney representing Trump in the racketeering suit, did not respond to a message seeking comment on Tuesday. In his submission, Elias also revealed that the idea that Fusion was required to help ward off potential litigation was not new.

He said a letter formally retaining Fusion GPS as a consultant to his law firm at the time, Perkins Coie, specifically mentioned the possibility of defamation suits. “As stated in the engagement letter, Fusion’s role was to provide consulting services in support of the legal advice attorneys at Perkins Coie were providing to specific firm clients related to defamation, libel, and similar laws in which accuracy is an essential legal element,’” the veteran Democratic attorney wrote.

Because the truth is an absolute defense in defamation litigation, Elias and other Democratic lawyers argued that using Fusion to gather facts about Trump was a logical part of determining what the campaign, the Democratic Party, and others could or should say about him.

Back in 2016, the prospect of litigation over such issues could have been critical to U.S. District Court Judge Christopher Cooper’s decision on whether to accept the privilege claims or override them, allowing Special Counsel John Durham’s prosecutors access to records of communications between Elias and campaign officials like John Podesta and Robby Mook.

Attorney-client privileges are typically respected by courts if the discussions take place in connection with ongoing or anticipated litigation, but not if they are totally separated from potential court action.

Durham’s team argued that aspects of Elias’ work, such as the use of Fusion GPS, appeared to be more similar to traditional opposition research than anything an attorney would typically seek advice on for a client.

This argument may have gained strength as a result of a settlement reached by the Clinton campaign and the DNC with the Federal Election Commission in February. Under the terms of the agreement, the DNC agreed to pay $105,000 and the Clinton campaign $8,000 to settle long-standing allegations that the political committees violated federal campaign finance law by reporting payments to Fusion GPS as “legal and compliance consulting” and reporting expenditures as paid to Perkins Coie without mentioning Fusion.

However, under the terms of the settlement, the DNC and the Clinton campaign refused to admit they violated the reporting law or rules and insisted that Fusion’s work was a legitimate part of Perkins Coie’s legal services. The Democratic National Committee (DNC) issued a statement calling the reporting complaints “aging and silly.”

Elias had previously declined to elaborate on the precise nature of Fusion’s work prior to his court submission this week. In 2017, he told congressional investigators that he hired Fusion after hearing good things about the firm’s Trump research, and he did so with the Clinton campaign’s blessing, though not with the explicit knowledge of officials there. During that interview, he described the firm’s work as research-oriented and did not mention Trump’s threat of legal action as a motivator, though he did describe Fusion’s work as an important part of providing legal services to the Clinton campaign.

A third of Elias’ new seven-page declaration was filed under seal and blacked out in the public copy released Tuesday. Lawyers for the Clinton campaign and the Democratic National Committee said the redactions were important to protect information about the attorney-client relationship.

Some of the deletions concern “confidential engagement letters” that Durham’s office already has, according to Clinton and DNC lawyers.

Durham prosecutors obtained a grand jury indictment against Sussmann last year on a single felony false-statement charge. The former Perkins Coie partner is accused of misleading FBI General Counsel James Baker in a September 2016 meeting by claiming he wasn’t representing any client while passing on information about suspected computer links between the Trump campaign and Russia. Sussmann has denied lying to Baker and has stated that he aims to fight the indictment on a variety of other grounds in a trial that is set to begin on May 16.

Cooper is set to hear arguments in the attorney-client privilege case next week.

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