Readers may recall that in the past Shipwreckedcrew speculated that Michael Sussmann (and potentially others in the Clinton Campaign’s Russia Hoax conspiracy) may have been fingered by Marc Elias—Sussmann’s fellow law partner at Perkins Coie. Well, they were fellow partners at Perkins Coie. They’ve both departed Perkins Coie, having become radioactive as regards Perkins Coie’s continuing existence as a law firm. At the time, I suggested that Elias was far too major a player to be the cooperator. SWC appears to have come around to that line of thinking in a series of tweets last night, and is now suggesting that Sussmann is dishing on Elias. SWC believes now that Sussmann’s cooperation may have enabled the additional subpoenas, which SWC speculates may target Elias’ emails at Perkins Coie.
This line of thinking fits with my most recent ruminations—as we’ll see below—although I don’t want to get out too far ahead. It’s important to be aware of the limits of what we know.
Yesterday I suggested that, as a result of Perkins Coie contesting Durham’s original subpoenas, a judge may have limited the scope of those subpoenas to those documents that the judge believed Durham had offered the best case as being relevant to his investigation. The relevance to a criminal investigation would form the basis of the crime or fraud exception to the attorney - client privilege that would normally apply to an attorney’s communications regarding a client.
Under this reasoning on my part, the original subpoenas may have sought emails and billing records not only for Sussmann but also for Elias—and potentially others. The judges, as I speculated, may have told Durham, in effect: Look, you can get the Sussmann docs because you’ve shown Sussmann’s links to persons of interest by other means, but hold off on the Elias docs—depending on your results you can always ask for those again at a later date.
Now, we know from the Sussmann indictment that Durham was, in fact, able to link Elias to Sussmann’s conspiratorial activities based on the emails and billing records. For that reason I want to be cautious regarding SWC’s idea that Sussmann is cooperating with Durham. Sussmann’s cooperation probably is not necessary for purposes of obtaining Elias’ records from Perkins Coie—although SWC is undoubtedly correct that Sussmann is under enormous pressure to cooperate and that the focus of that cooperation would include Elias. The positive results from the first round of subpoenas to Perkins Coie are almost certainly sufficient for those purposes, regardless of whether Sussmann is cooperating at this point. Sussmann may have begun cooperating, but we can’t be certain. Let’s not get too far out in front with speculation.
Before offering SWC’s tweets for your consideration, I want to return to what I’ve previously said about Elias—that he’s too major a player to be an initial target for cooperation by Durham. Elias is too close to Hillary and to all things legal as regards the Dem party—it’s difficult for me to believe that he would have led the race to cooperate. As SWC observes: “Elias takes you on a lot of directions other than just Alfa Bank.” Precisely.
Durham is well known for being a methodical investigator and prosecutor. My view remains that before attempting to turn the screws on Elias he’ll first want to build air tight cases against targets for whom he has hard evidence. Further, Sussmann is by no means a minor player—he’s just not as big as Elias. I believe Durham would prefer to obtain subpoenas targeting Elias’ records on his (Durham’s) own terms, based on his own investigative results, rather than based on cooperation from Sussmann. That would allow Durham to drive a harder bargain with Sussmann if it comes to a plea deal. By limiting Sussmann’s ability to say, Hey, I helped you with this, that, or the other thing, so gimme a break, Durham gains leverage over Sussmann and may be able to extract even greater cooperation. All that’s as may be—it may not turn out that way, but the methodical Durham will surely want to put himself in the strongest possible position well ahead of any turn of events.
Now consider what SWC has to say:
Suppose you want to get Sussman to talk, but he's not interested. You tell him you are going to indict him but he think's you're bluffing or his friends in the Biden DOJ will save him. So you indict him on one charge. Message sent and received. Sussman knows he's on his own.
He's Rick Gates now. The only currency he has to trade is what he know about others, including Elias. So he agrees to talk finally. Now you have more information than before your Sussmann indictment. So you subpoena Perkins again -- this time for Elias' emails.
Elias takes you on a lot of directions other than just Alfa Bank.
"Some of the newly sought-after documents have been guarded so far by attorney-client privilege."
Durham thinks he can defeat the privilege now.
Based on what Sussman told him???
Yes. Durham doesn’t really just think that. Durham knows for a fact that he can defeat attorney - client privilege now because he did exactly that versus Elias’ partner, Sussmann. And in the subsequent investigation he gained valuable ammunition against Elias from the Sussmann docs. As a result, Durham’s position regarding attorney - client privilege and Elias is even stronger than before. Sussmann is in an unenviable position, and Elias knows that Durham is targeting him.