OPINION: This article may contain commentary which reflects the author's opinion.
Lawyers for former Democratic presidential nominee Hillary Clinton’s failed 2016 campaign filed a last-minute plea last week to block special counsel John Durham from introducing certain evidence during the trial of Michael Sussmann, claiming “attorney-client privilege.”
But the bid to bar the evidence from being admitted is likely to fail, Just the News reported, citing several experts who are observing the case.
“[T]he sweeping requests for confidentiality — including research from former MI6 agent and opposition researcher Christopher Steele — face a high hurdle,” experts said, the outlet reported.
“That’s because the very subjects the Clinton campaign now seeks to protect — such as its now-discredited anti-Trump research — were widely distributed without regard to privilege for years,” the report continued.
The contents of the now-infamous Steele dossier, for instance, were shared with several news reporters, the FBI, and the State Department. Steele himself talked extensively about his 2016 conversations and dealings with the Clinton law firm, its research firm Fusion GPS and the FBI in a British court case
Sussmann shared much of a research project — which turned out to be untrue — alleging a secret communications channel at the Alfa Bank between Trump and the Kremlin.
And several of the Clinton campaign figures gave testimony to Congress that exposed who paid for the research falsely tying Trump to Russia, what was in it and why it was conducted.
Said another way, each of the disclosures to third parties amounted to a waiver of any attorney-client privilege claims, at a minimum.
Several experts and observers of the case who spoke to the outlet thought that it was outrageous, and perhaps even a little desperate, considering that the dossier was always meant to be made public.
“It is clear as a matter of law and legal ethics that legal research intended to be made public is not protected by attorney-client privilege,” Alan Dershowitz, a Harvard Law professor who supported Clinton in 2016 but dismisses her privilege claims now, told Just the News. “Even if it were, any privilege would be waived by testimony given about the research or the product.”
In addition, Kash Patel, a former federal prosecutor who was instrumental in exposing the Russia collusion hoax while serving as chief investigative counsel for the House Intelligence Committee, added that Durham has several options for beating back the belated privilege claims, “including the argument it does not apply in a circumstance where lawyers were passing along false information,” Just the News reported.
“The attorney-client privilege, from my former federal prosecutor days, is eviscerated if you share with a third party,” Patel told the John Solomon Reports podcast. “But what John Durham is saying — he’s coming in over the top and saying, ‘No, no, you can’t hide behind the privilege laws. This is an attempt to block information of an ongoing fraud. You cannot use the attorney-client privilege. There’s a crime-fraud exception.'”
House Judiciary Committee member Rep. Andy Biggs (R-Ariz.), meanwhile, remarked that the Clinton campaign’s claims of privilege were ridiculous in large part because of all of the times the Russian collusion narrative was shared with third parties. He also said the filing appears to a desperate attempt at delaying the trial of Sussmann, who served as one of the campaign’s lawyers.
“I think their attorneys missed that 15 minutes in ethics class, which tells you that you’ve waived the privilege when you start leaking it or even have somebody present while you’re discussing it,” Biggs told “Just the News, Not Noise” TV show. “That’s not part of the attorney-client relationship.
“I don’t think it’s going to be a winner. I think they’re going to lose on that. And, you know, it’s starting to unravel for them pretty quickly. And they just don’t want the truth to come out,” Biggs said.
Just the News adds: “According to Durham’s team, Sussmann shared the Alfa Bank research with at least two third parties: the FBI in September 2016 and the CIA in February 2017.”