Further Consideration Re Durham's Additional Subpoenas

I’m appending to this post—for ease of reference—my reflections on the report that Special Counsel John Durham has issued additional subpoenas in his investigation—”including” to the Clinton connected Perkins Coie law firm for more documents. I hope readers will recall that, in Durham’s indictment of former Perkins Coie partner—and Clintonista—Michael Sussmann, Perkins Coie billing records obtained by earlier subpoenas were very much front and center. Those billing records tied the entire Clinton Alfa Bank conspiracy together—connecting Sussmann, Clinton Campaign lawyer (and Perkins Coie partner) Marc Elias, Fusion GPS and Glenn Simpson, and their tech guru, Rodney Joffe. It’s the billing records that makes the whole conspiracy theory work, makes it hang together.

I’ve been turning this development over in my mind. My original reflections, below, still stand, but there are other considerations as well.

To begin with, normally when Grand Jury subpoenas are issued for documents from some organization, those subpoenas demand everything that could conceivably relevant. As a result, additional subpoenas draw attention. Of course, this is definitely not a normal situation, but the question arises: Why additional subpoenas to an entity that has already turned over documents in the investigation?

The original subpoena was issued to a law firm, Perkins Coie, so the presumption would be that attorney - client privilege would apply. The law firm would be expected to refuse to hand over the documents until forced to do so by a judge, asserting the privilege. Shipwreckedcrew has persuasively argued that this is exactly what happened in the Sussmann case—Perkins Coie forced Durham to litigate the issue of getting past attorney - client privilege before eventually turning the documents over.

Now, we know that Durham—after some perhaps considerable delay—gained his point. Perkins Coie was forced to disgorge documents. However, it seems to me that there is a further possibility. It’s possible that the judge who handled this part of the case may have ruled that Perkins Coie would only be required to turn over those documents that Durham was able to most convincingly demonstrate should not fall under the privilege. The idea would be to respect the privilege and not allow Durham to go on a fishing expedition similar to obtaining bank records. If, on the other hand, Durham was able to confirm the relevance of those documents, then he could always come back and ask for more.

If that’s what happened, then clearly Durham’s indictment provides a strong argument for obtaining more records—records that may have been included in the original subpoena but were excluded for the time being, until Durham could demonstrate a reason to expand his demands for what would ordinarily be privileged documents. The indictment confirms that probable cause existed for the relevance of the records that were actually obtained, and this lends credibility to Durham’s further demands.

Another question that arises is this: Would Perkins Coie have litigated the issue of attorney - client privilege with regard to these additional subpoenas? I have no experience in these matters, but I’m inclined to believe that they would not. It appears almost certain that Perkins Coie, having been forced to turn over at least Sussmann’s billing records, hired an outside law firm to conduct its own inquiry. The departure of both Sussmann and Elias from Perkins Coie may have been the law firms admission that their own inquiry confirmed the likelihood of wrongdoing or, at the least, questionable conduct on their part. From press accounts their departure also appears to have been part of an effort to placate Durham and clear themselves of wrongdoing in his eyes. In those circumstances, attempting to take a hard line with Durham, having already lost one such battle, seems like waving a red flag at a bull.

All this is speculation, of course, but it does appear for today that Durham is moving ahead. If this speculation is correct, that would also mean that his progress going forward could be quicker, without legal roadblocks to these additional subpoenas.

Here is the earlier post:

Breaking: Durham Issues More Subpoenas

Perkins Coie Is The Reported Recipient

CNN is reporting, in a lengthy overview of the Sussmann case, that Special Counsel John Durham has issued additional subpoenas in the investigation:

Durham issues fresh round of subpoenas in his continuing probe of FBI investigation into Trump, Russia

While the overview of the case is lengthy, it adds no new information beyond the matter of the subpoenas. The thing to note is that the subpoenas were apparently issued after the Sussmann indictment was made public. Also, while the article states as fact that Perkins Coie—”a law firm with close ties to Hillary Clinton's 2016 campaign”— received subpoenas, it is not known whether other persons or organizations may also have received subpoenas. The article says the subpoenas include Perkins Coie but, of course, that doesn’t mean they’re limited to Perkins Coie. Finally, although Durham is said to be seeking “additional documents” from Perkins Coie, there is always the possibility that specific persons have been subpoenaed to testify before the Grand Jury.

Here’s the actual wording of the article, in relevant part:

Special Counsel John Durham has issued a new set of subpoenas, including to a law firm with close ties to Hillary Clinton's 2016 campaign, an indication that Durham could be trying to build a broader criminal case, according to people briefed on the matter. So far, Durham's two-year probe into the FBI's Russia investigationhasn't brought about the cases Republicans has hoped it would.

The grand jury subpoenas for documents came earlier this month after Durham charged Clinton campaign lawyer Michael Sussmann with lying to the FBI in a September 2016 meeting. During that meeting, Sussmann handed over data purporting to show links between the Trump Organization and Russia's Alfa Bank. That tip became part of the FBI's investigation into Russian interference in the 2016 election but the FBI ultimately couldn't find evidence of a link.

In seeking additional documents from Sussmann's former law firm, Perkins Coie, investigators from the special counsel's office appear to be sharpening their focus on the Democratic political machinery during the 2016 campaign and efforts to tie Trump to Russia.

Perkins Coie's clients in 2016 included the Clinton campaign and the Democratic National Committee. The law firm also hired on the campaign's behalf a research company that commissioned the dossier from ex-British spy Christopher Steele that alleged that Trump was compromised by Russia.

Obviously we can’t be certain that the subpoenas are limited to demands for additional documents from Perkins Coie. However, as regards Perkins Coie, two possibilities come to mind: 1) The law firm’s own efforts to assure Durham that it was not complicit in any wrongdoing by Sussmann, Marc Elias, or any other Perkins Coie lawyers or employees may have opened new avenues of inquiry. 2) The other possibility is that a cooperating witness could have tipped Durham off to those new avenues of inquiry.

Perhaps others will have more information or more informed speculation. The timing of the revelation is interesting. The new federal fiscal year begins tomorrow—October 1st. My understanding has been—subject to correction—that Merrick Garland was due to approve new funding for Durham’s investigation by yesterday, September 29th. Are you seeing what I’m seeing? If I’m wrong we’ll find out very quickly.