Durham Chronicles: Fusion GPS and the Moby Dick method of litigation support

When stories don’t line up.

If you want a fresh perspective on John Durham’s grand jury subpoena for materials related to the Alfa Bank hoax and Michael Sussmann’s activities, you could do worse than have a visit with Glenn Simpson’s testimony to the House Intelligence Committee (the Permanent Select Committee on Intelligence, or HPSCI) from 14 November 2017.

Those who have been following Durham’s false statement case against Sussmann, which alleges that Sussmann lied to the FBI in 2016 when he told FBI general Counsel James Baker that he wasn’t representing a client in a meeting in September of that year, are familiar with where the case stands at the moment.  Sussmann’s trial is scheduled to begin on 16 May 2022, and both sides, prosecution and defense, are busy filing motions and related items.

Fusion GPS received a grand jury subpoena in March 2021.  And while the firm has produced a number of responsive items, it has also withheld quite a few due to claimed privilege with the Perkins Coie law firm, which in 2016 contracted Fusion GPS for services related to the Hillary Clinton campaign and the Democratic National Committee.

On 6 April 2022, Durham filed a motion to compel Fusion GPS, among others, to produce some of the withheld documents for in camera review by the judge.  In the motion, the special counsel explained that “the U.S. Investigative Firm [Fusion GPS] has withheld approximately 1,455 documents that are responsive to the subpoenas based on claims of attorney-client privilege and attorney work product protections. For most of the responsive documents, the privilege log explains that the reason for withholding is because they contain ‘research prepared at the direction of [Law Firm-1; i.e., Perkins Coie – J.E.] in anticipation of litigation, and for the purpose of providing legal advice.’”

But according to Durham, “The vast majority of the entries reflect communications with no lawyer listed as a sender, recipient, or copied party.” (See pp. 3-4)

Special Counsel John Durham. DOJ via Wikipedia

The motion to compel marshals a nice argument that, in effect, Fusion GPS didn’t seem to be treating the subjects of the correspondence in question as privileged in 2016.  (The attorney-client privilege, per se, would in any case have been that of the parties represented by Perkins Coie:  the DNC and the Hillary for America campaign organization.)

It also points out that the work done by Fusion GPS was not primarily characterized by any suitability for or focus on providing legal advice.  Fusion GPS, Durham says, “conducted opposition research regarding Trump’s purported ties to Russia at the behest of the Clinton Campaign and the DNC through a retention agreement with Law Firm-1. But in doing so, the U.S. Investigative Firm was not primarily providing or supporting expertise relating to legal advice; instead, it appears that the investigative firm’s primary, if not sole, function was to generate opposition research materials that the firm then shared widely with members of the media, the U.S. State Department, the Department of Justice, the Federal Bureau of Investigation (‘FBI’), members of Congress, and others. These efforts resulted in numerous media articles and reports in the period before and after the U.S. Presidential election.” (p. 9)

Starting on page 11, the motion outlines instances in 2016 in which Fusion GPS urged the Alfa Bank story, specifically, on media outlets, and along with its subcontractor Christopher Steele shopped other Fusion-generated material about Trump to the media as well as to the FBI and other government agencies.

Certainly this pattern doesn’t seem like a profile of assisting Perkins Coie in preparing for potential litigation, presumably with the Trump campaign.  Durham in fact appended a white paper done by Fusion GPS on Alfa Bank (Exhibit B/Attachment 2) as an example of the type of work Fusion was producing – a particularly relevant example because the paper was part of the material Sussmann allegedly provided to the FBI in September 2016.

The white paper clearly represents wide-ranging research and manages even to suggest implications about Alfa Bank-related persons and the George W. Bush presidency, the kind of oppo-impressionism “bonus” that companies like Fusion get paid for.  The paper is clearly a political document, assembling facts based on their implications for Democrats and Republicans, and lacking any organizing focus that would make it suitable as a basis for legal advice.  (One imagines James Baker, in fact, or a subordinate tasked to run through the material, thinking, “Why did Sussmann bring this to us?  This is a political consulting firm brief based on media reporting.”)

Michael Sussmann in an online forum in 2020. YouTube, Docket Media video

Durham has in any case assembled the legally-focused argument he needs in the 6 April motion, and doesn’t require my help to sharpen or emphasize it.

But it’s still – let’s call it ear-opening, to revisit the earlier 2017 testimony by Glenn Simpson of Fusion GPS.  Basically, Simpson’s testimony to HPSCI was an extended refutation of the firm’s current argument in recent filings that it was engaged for “litigation support” and research to inform “legal advice.”

It’s also instructive to approach the Simpson testimony in 2017 by way of Fusion’s response to Durham’s 6 April motion to compel.  Fusion’s response was filed on 19 April 2022, and contains a number of repetitions of the theme summarized on p. 10 (ellipses by TOC):  “The ‘primary object’… of Fusion’s engagement and work at the direction of [Marc] Elias, was assisting Perkins in protecting its clients in anticipated litigation.”

Fusion cites testimony to HPSCI from Marc Elias in December 2017, which we will look at below.

Fusion goes on to assert, laughably, that “Fusion’s relationship with Perkins in 2016 confirms that Fusion’s work was not to generate opposition research materials for public dissemination, [a reference here to the Durham motion, paragraph 6], but rather to provide investigative services in support of Perkins’s representation of HFA and DNC.”

The Alfa Bank white paper filed as a special counsel exhibit is one example of the absurdity of this claim.  Any potential “litigation” purpose in this example depended on generating opposition research first.  Without shopping its oppo research to the media, there would be no reason for Fusion to provide to Perkins Coie, among other things, the same lengthy rap sheet on one-time arms negotiator (and former Ambassador to Germany) Richard Burt, his alleged links to Alfa Bank and Deutsche Bank, an alleged obfuscating cloud of connections with Russian oligarchs, and with Paul Manafort, Carter Page, John McCain, and the George W. Bush administration, and all of it leading back to Burt’s reported involvement in composing a Trump foreign policy speech given on 27 April 2016.

Not a speck of that brief against poor old Burt was ever going to come up, either before or after Election Day 2016, if a firm like Fusion didn’t dig it up first and go out and sell it to the media, so that Trump could become aware of the allegations and be moved to litigate.

Not that there would be much likelihood of litigation by Trump in this case, although perhaps Richard Burt might have been so moved.  In either case, the need for Perkins Coie to represent Hillary or the DNC in such a matter had to presuppose, for no obvious reason, that those entities would have been connected as instigators to the story as it was retailed in the media.  Otherwise, Trump or Burt, if they had a defamation case, would be likely to simply sue the media outlets.

MSNBC video, YouTube

C’mon man.  Of course Fusion GPS was hired to do opposition research.  But as a last stop on the way, let’s look at what Marc Elias said in December 2017 in answer to questions from HPSCI about his tasking relationship with Fusion.

See his response to the question posed on p. 52.  Elias had just been asked how often he conferred with Fusion GPS during the period of their contract, and said it was approximately on a weekly basis.  This exchange followed:

Elias testimony p. 52

Earlier in the testimony, Elias had responded to a direct question about the importance of litigation, per se, to his decision to hire Fusion.

Elias testimony p. 37

In the same passage, Elias acknowledged that his researchers at Fusion might come up with information he hadn’t asked for, and inquire whether they should pursue it.

Elias testimony pp. 37-38
Elias testimony p. 38

In Fusion GPS’s response to Durham’s motion to compel, these and related disclosures by Elias (see p. 46 of his HPSCI testimony) were summarized as follows (p. 10 of the Fusion filing on 19 April 2022; ellipsis in original):  “Elias provided legal advice [to his clients, the DNC and HFA], including whether allegations made in a campaign ad ‘may run afoul or run the risk of civil litigation’ and he engaged Fusion to provide information that would be ‘incorporated into [his] judgments . . . about legal issues.’”

Yet if any of the Fusion research was done anticipating civil litigation, it appears it would have been overwhelmingly, if not entirely, due to the same Fusion research intentionally prompting publication of potentially defamatory material – which would then have had to be traced to Perkins Coie’s clients.  It is specious (circular?) in the extreme to argue that Fusion was hired only to assist in the litigation ensuing upon Fusion’s opposition research.

Fusion chases Moby Dick

For whatever reason, it’s a somewhat different sound we hear from Glenn Simpson’s HPSCI testimony in November 2017, if we listen with our ears.

For one thing, Simpson does not represent Fusion as being under close, limiting direction from Marc Elias.  In fact, reading through the transcript, one has the distinct impression that the use to which Fusion’s unfettered and vigorously partisan research was most suited was entering a lot of unverified speculation about Trump in the HPSCI record, in response to questions from Adam Schiff and other Democrats.

The most productive Democratic questioners got pages and pages of information about the substance of Fusion’s research, and hence innuendo about Trump, typed into the transcript.

It had occurred to me early on that if Fusion’s main contract objective with Perkins Coie was to support litigation analysis, hiring Christopher Steele to send Igor Danchenko to trawl bars in Russia for whatever gossip he could bring back was a downright weird way of pursuing it.  For those who might object that that’s an unfair description, see this interlude on page 82:

Simpson testimony, p. 82

There can be no disputing that the primary work product of the Fusion contract was the Steele dossier – which was shopped to media and senior members of two branches of government; was used by two federal agencies as a supporting addendum for a formal intelligence analysis; and was deployed by the FBI and DOJ as justification for FISA authority to conduct surveillance of Carter Page.

Christopher Steele and “Primary Sub-Source” Igor Danchenko shirt up for the roles of their lives. Social media; author

It is very hard to characterize the dossier as research support for potential litigation, and even harder when we recall Simpson’s affirmation that Steele was sent forth to compile it without guidance or constraint as to what it should be about.

Unfortunately, there is so very much evidence in the HPSCI testimony of Fusion’s wide-open vacuum setting that it’s difficult to narrow down examples.  I can recommend starting from a passage on p. 111 in which Adam Schiff has asked Simpson what his purpose was in taking so much of Fusion’s work product to the media and trying to get it briefed to government officials.

Simpson responds that it was done to “expose a sinister plot by Vladimir Putin, a hostile foreign power, to attempt to alter the outcome of an American Presidential election. And that was the goal. You know, and again, I mean, basically our behavior after the election was of the same basic character. At some point, it became about blowing the whistle on this.”

Simpson testimony, p. 111

Listening with our ears, we thus hear that Simpson was not operating under any sense of restraint or limitation as regards what Fusion’s research, reactions, or decisions should be about.  This page is a good point of departure from which to read for several more pages and get a flavor of the wide variety of topics over which Fusion’s research roamed.

But one may get such a sense from almost any of the Q&A sessions with Democrats.  (Some, like Eric Swalwell, stopped in only briefly and didn’t ask enough questions to really lard up the transcript.)

Probably one of the most important services we get from revisiting Simpson’s testimony is this one:  a contrast between what Fusion did for Perkins Coie and its political clients, and what Fusion did for Baker Hostetler and its non-political client, Prevezon Holdings.

The latter was an actual example of research by Fusion to support Baker Hostetler’s legal representation of Prevezon.  I.e., it was genuine litigation support.  And in a brilliant turn, Simpson pointed out himself that what Fusion did for Baker Hostetler was different from what it did for Perkins Coie.

Glenn Simpson (L) and Adam Schiff. Via The Lid blog

To start with, on pp. 21-22, we see Simpson being questioned by Trey Gowdy, who asks him if the client (i.e., Perkins Coie) dictates the lines of inquiry Fusion undertakes.  Simpson says, in effect, no.  Contra Marc Elias’s characterization, Simpson puts it this way:   “Generally speaking, we seek and usually receive a lot of leeway to develop our lines of inquiry. And typically, when you’re already familiar with the subject and the client isn’t — and that was obviously the case here — you’re running the investigation.”  There are a couple more sentences to that effect.

Simpson testimony, pp. 21-22

Gowdy takes Simpson through a discussion of how he came to hire Steele for the Perkins Coie job, and Simpson’s summary is pretty much the opposite of adopting a focus for litigation support.  According to Simpson (ellipsis by TOC), “[T]he initial engagement with Chris was much like we do. I didn’t hire him for a Jong-term engagement. I said, take 30 days, 20 or 30 days,· and we’ll pay you a set amount of money, and see if you can figure out what Trump’s been up to over there … It was pretty open-ended. I didn’t say, find me this or get me that. I just said, see if you can figure out what’s going on· over there.” (p. 25)

Simpson testimony, p. 25

Gowdy then spends some time on how or whether Simpson was able to corroborate Steele’s information.  This passage culminates on p. 29 with a declaration from Simpson that vetting “intelligence” and “field interviews” is different from looking at a lawsuit.

Simpson testimony, p. 29

In a later Q&A session with Joaquin Castro of Texas, Simpson helpfully describes the nature of litigation support; i.e., “looking at a lawsuit.”  The discussion was about his work for Baker Hostetler on behalf of Prevezon, and he characterized it thus:  “I generally provide litigation support, which Is research, gathering documents, figuring out who to subpoena, and sometimes dealing with witnesses and media and other things.”  (p. 87)

Simpson testimony, p. 87

Simpson repeats the description on p. 88.  The extended Q&A with Castro, in the ensuing pages, produces a picture of the focused process in which the law firm has a specific, pre-defined issue or set of concerns about a case, and hires Fusion to focus its efforts on research, analysis, interviews, and media interactions related to the features of that case.

That description comports with the testimony from Marc Elias.  And it’s what Fusion claims its role with Perkins Coie was, in its 19 April filing in the Sussmann case.

But it bears no resemblance to what Simpson says in his 2017 testimony about what his firm was doing for Perkins Coie during the 2016 election.  That, he indicates, was so open-ended that he didn’t even give his subcontractor, Christopher Steele, direction on what to throw out a net for with his “intelligence network.”

Unlike the essential, for a lawsuit, of being able to verify and corroborate information for the client’s specific concerns, Fusion’s work for Perkins Coie involved piling up unverifiable data points to sift through and run around briefing Washington about.

By Simpson’s description, Fusion was operating in the realm of “leeway to develop lines of inquiry”; was “running the investigation”; and had “the freedom to pursue everything or the things [Fusion] thought [were] important.”

Simpson says other things relevant to how much the work for Perkins Coie sounds like litigation support.  On p. 56 he acknowledges that he has to rely on Steele’s word that the dossier sources weren’t paid for any information – rather obviously a point that would have to be pinned down for support to a case at law.  There are several passages in which Simpson’s squirming makes it clear that Fusion was basically unable to corroborate much of Steele’s information.

And on p. 124, in an exchange with Adam Schiff, Simpson avers regarding his practices for going to the media that “what I can say generally is that if I am talking to the press about a piece of research I am doing, you know, I would want to be – I would want my client — my client would be aware of that. But I am also a professional, and, so, I don’t need to clear every reporter conversation I have beforehand, or even report it afterwards with a client.”

It seems doubtful that this is really how a client paying for litigation support would want to handle things (or even, for that matter, what the client would want to expect if Fusion were shopping around oppo research that might make innocent third parties look like they’ve been involved in suspicious activities with Russian oligarchs who are colluding with Donald Trump).

What we hear with our ears, ultimately, is what this would sound like in cross-examination in court, if Marc Elias and Glenn Simpson were confronted with each other’s words from congressional testimony, or if Simpson had to compare his talk of leeway and running investigations with Fusion GPS’s response to the Durham motion to compel of April 2022.

We can treat our ears to one more passage as a sign-off from this exercise.  See if you like it for the sound of litigation support.

On p. 164 of his 2017 testimony, Simpson is once again in an exchange with Schiff, and offers this coda to a day spent with Fusion GPS and its stack of stuff on Donald Trump:  “I investigate business stuff and financial crime and corruption and those kind of things. That’s my gig. So people came to us with stories that we never pursued. And we were recently asked by some reporter did you write a memo in 2015 about – I had no idea what they were talking about. You know, we threw a line in the water and Moby Dick came back, and we didn’t know what to do with it at first. So anyway.”

Captain Ahab (Gregory Peck) grapples with the great whale in 1956’s Moby Dick. (Via YouTube)

Feature image:  Final battle scene with Moby Dick in John Huston’s 1956 film of the Herman Melville novel Moby Dick. YouTube

2 thoughts on “Durham Chronicles: Fusion GPS and the Moby Dick method of litigation support”

  1. It’s not legal advice nor even opposition research. Research implies digging up facts. The Steele Dossier is a work of fiction that was filtered through so many layers so as to cause confusion.

  2. Lots of doubt is expressed across the internet about whether John Durham will deliver, and the (grand) jury is still out on that. But he has managed to get a who’s who of likely felons to all come to court to file their assertions against his investigation for the record. Whether they can collectively tell a consistent story without becoming a circular firing squad looks like a better wagering opportunity (and I think Mr. Durham is all in on this). JE’s insightful play by play greatly helps to follow along. Thank you and keep up the good work.

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