Special Counsel John Durham has requested that a judge review documents being withheld from his investigation to determine if they are covered by privilege or just covered up. The judge could review the documents himself and pass non-privileged documents on to Durham or he could appoint what is known as a special master to do the same thing. Durham believes that they are withholding incriminating evidence against Michael Sussmann that is not privileged.
The Clinton campaign and DNC have withheld 1,455 documents issued by the Perkins Coie law firm under claims of attorney-client privilege. Some of those documents concern Rodney Joffe, who has been accused of aiding in the spying on President Trump. He is not a client of Perkins Coie and so I fail to see how that is privileged information.
There is currently no time set for a decision and even after a decision is reached, it will take time to read and assess those 1,455 documents. I do assume that it will need to be done before Sussmann comes up for trial. Sussmann is currently trying to get the charges dropped because if he doesn’t, he could lose his law license for perjury.
Durham also lists documents held by Fusion GPS and former Neustar executive Rodney Joffe as being withheld under claims of privilege. However, “the vast majority of the entries reflect communications with no lawyer listed as a sender, recipient, or copied party,” Durham wrote.
Federal prosecutors frequently assert that defendants abuse claims of attorney-client privilege. For instance, Justice Department lawyers recently accused Google of improperly invoking privilege to shield emails requested as part of an investigation into alleged anti-competitive practices.
In cases involving privileged materials, a federal judge may review them, or appoint an official known as a special master to do so. A special master was recently appointed in a case involving Project Veritas to review documents seized by the FBI that Veritas claims are protected journalistic material. A special master was also appointed to review materials seized from Rudy Giuliani that Giuliani claims should be protected by attorney-client privilege.
In this case, Durham is requesting that a judge review the documents and then release them to the government if they are not truly covered by attorney-client privilege.