April 22, 2022

BY OVERNIGHT MAIL AND E-MAIL

Special Counsel John H. Durham, Esq.
Assistant Special Counsel Jonathan E. Algor, Esq.
U.S. Department of Justice
145 N Street, N.E.
Room 3E.803
Washington, D.C. 20530
[email protected]

Re: United States of America v. Sussman, Crim. No. 21-582 (CRC) (D.D.C. filed Sept. 16,
2021)

Dear Mr. Durham and Mr. Algor,

I write on behalf of the Coolidge-Reagan Foundation (“the Foundation”), a 501(c)(3) nonprofit

corporation devoted to protecting the First Amendment and ensuring fair elections, with regard to recent
filings by Hillary for America (“HFA”) and the Democratic National Committee (“DNC”) in the above-
captioned case.

HFA and the DNC each filed a motion to intervene in United States v. Sussman “as an interested
non-party to assert privilege claims over documents and information that the Government seeks to
compel.” Hillary for America’s Motion to Intervene, United States v. Sussman, No. 21-582 (CRC), D.E. #86,
at 1 (D.D.C. Apr. 19, 2022) [hereinafter, “HFA Motion”]; accord Democratic National Committee’s Motion
to Intervene, United States v. Sussman, No. 21-582 (CRC), D.E. #89, at 1 (D.D.C. Apr. 19, 2022) [hereinafter,
“DNC Motion”]. Both entities argue the materials the Government seeks to obtain from Perkins Coie and
its consultant, Fusion GPS, “are protected by the attorney-client privilege and the attorney work product
doctrine.” HFA Motion at 1; DNC Motion at 1-2. These representations by HFA and the DNC appear
inconsistent with the terms of the Conciliation Agreements those entities executed with the Federal
Election Commission (“FEC”).

In August 2018, the Foundation filed an Administrative Complaint with the FEC regarding HFA, the
DNC, Perkins Coie, and Christopher Steele, pursuant to 52 U.S.C. § 30109(a)(1). See Verified Complaint
(Aug. 1, 2018), Coolidge Reagan Foundation v. Steele, FEC MUR 7449 [hereinafter, “Administrative
Complaint”]. A true and complete copy of the Administrative Complaint is included as Exhibit 1 to this
letter.

The complaint alleged HFA and the DNC used HFA’s law firm, Perkins Coie, to hire and funnel over
$1 million to “outside research firms” such as Fusion GPS “to perform potentially sensitive, controversial,
or politically embarrassing” opposition research into Donald Trump. Id. ¶¶ 7-8, 12. This opposition

1629 K Street NW ● Washington, DC 20006

202-210-5431(direct) ● 202-478-0750(fax)
research was “for political purposes, to find damaging information concerning [Trump] that could be used
against him in the campaign.” Id. ¶ 10. The research was not “for the purpose of assisting Perkins Coie in
providing legal advice to HFA or the DNC.” Id. The complaint explained, “Because Fusion GPS’s work was
to further HFA’s and the DNC’s political and campaign-related goals, rather than for the purpose of
providing legal advice or assisting with impending or potential litigation, it was not covered by attorney-
client, work-product, or any other privileges.” Id. ¶ 11.

The complaint pointed out that HFA reported all of its payments to Perkins Coie throughout 2016
and 2017—including payments made in connection with Fusion GPS—as being for “LEGAL SERVICES.” Id.
¶ 14. The DNC, in contrast, reported its payments to Perkins Coie as being for a variety of purposes,
including “LEGAL AND COMPLIANCE CONSULTING” and “LEGAL AND COMPLIANCE SERVICES,” but none
of these claimed purposes had anything to do with opposition research, background investigations, or
Donald Trump. Id. ¶ 15. The complaint declared:

By intentionally obscuring their payments to Perkins Coie and failing to disclose the true
purpose of those payments, HFA and the DNC were able to avoid publicly reporting on
their statutorily required FEC disclosure forms the fact that they were paying Fusion GPS
to perform opposition research on Trump with the intent of influencing the outcome of
the 2016 presidential election.

Id. ¶ 13; see also id. ¶ 16 (alleging that HFA and the DNC used Perkins Coie as a “straw man intermediary
for this pervasively political, non-legal work,” allowing them to “mask their relationship to Fusion GPS
from the public in the critical weeks before the 2016 presidential election, in direct violation of federal
campaign finance law”).

Based on these allegations, the complaint contended that HFA and the DNC violated 52 U.S.C. §§
30104(b)(5)(A) and 30104(b)(6)(B)(v) by failing to accurately report that the purpose of a substantial
amount of their payments to Perkins Coie was for opposition research, and that Fusion GPS was actually
the recipient of those payments. See Administrative Complaint at 10-14 (Counts I-II). The FEC accepted
the Administrative Complaint on August 8, 2018, and designed it Matter Under Review #7449. A true and
complete copy of the FEC’s acknowledgement letter is included as Exhibit 2 to this letter.

Several years later, in February 2022, both HFA and the DNC executed Conciliation Agreements
with the FEC to settle the investigation triggered by this complaint (as well as other administrative
complaints raising similar allegations that had been independently filed by other, unrelated entities). See
Conciliation Agreement, In re Hillary for America, et al., MURs 7291 and 7449 (Feb. 22, 2022) [hereinafter,
“HFA Agreement”]; Conciliation Agreement, In re DNC Servs. Corp./DNC, et al., MURs 7291 and 7449 (Feb.
22, 2022) [hereinafter, “DNC Agreement”]. True and complete copies of these Conciliation Agreements
are included as Exhibits 3 and 4 to this letter. HFA’s conciliation agreement expressly declared that,
following an investigation, the FEC “found probable cause to believe” HFA had violated 52 U.S.C. §
30104(b)(5)(A) and its accompanying regulation “by misreporting the purpose of certain disbursements.”
HFA Agreement at 1. The DNC’s conciliation agreement went further, specifying the FEC found probable

1629 K Street NW ● Washington, DC 20006

202-210-5431(direct) ● 202-478-0750(fax)
cause to believe the DNC’s “misreporting” had “violated 52 U.S.C. § 30104(b)(5)(A) and (b)(6)(B)(v).” DNC
Agreement at 1.

Both agreements declare, “Solely for the purpose of settling this matter expeditiously and to avoid
further legal costs, Respondent does not concede, but will not further contest the Commission’s finding
of probable cause to believe.” HFA Agreement ¶ VI; DNC Agreement ¶ VI (emphasis added). HFA agreed
to pay a fine of $8,000 and refrain from future violations of 52 U.S.C. § 30104(b)(5)(A). HFA Agreement ¶
VII(1)-(2). The DNC agreed to pay a fine of $105,000 and refrain from future violations of 52 U.S.C.
§ 30104(b)(5)(A) and (b)(6)(B)(v). DNC Agreement ¶ VII(1)-(2). The FEC’s Office of General Counsel has
prepared a memorandum that the FEC voted to approve in order to make these probable cause
determinations, See 52 U.S.C. § 30109(a)(3), but it will not be made public for another week, see 11 C.F.R.
§ 111.20(c). That document, which your office can likely obtain from the FEC, will provide greater detail
concerning the FEC’s findings that HFA and the DNC agreed to refrain from contesting.

At a minimum, however, in order to “settl[e]” the FEC’s investigations “expeditiously,” both HFA
and the DNC agreed to “not further contest the Commission’s finding of probable cause to believe” that
HFA and the DNC had falsely reported their payments through Perkins Coie to Fusion GPS as being for
legal services. In Sussman, in contrast, it appears HFA and the DNC are nevertheless asserting materials
generated by Fusion GPS and provided to Perkins Coie are protected by attorney-client privilege and work-
product doctrine. These arguments run directly contrary to the FEC’s probable cause determinations and
appear to be barred by HFA’s and the DNC’s conciliation agreements with the FEC. The Government
should not permit HFA and the DNC to adopt conflicting positions in different proceedings, depending on
the federal agency against which they are litigating. The Court may also find these breaches of the
conciliation agreements material in ruling on any privilege claims.

HFA and the DNC lied on their campaign finance filings to make it appear that Fusion GPS’s
opposition research into Donald Trump was performed in connection with legal services. They should not
be permitted to peddle these false claims before a federal court.

We are happy to provide any additional information that may be helpful in this, or any other
related matter.

Sincerely,

Dan Backer, Esq.

Counsel
Coolidge Reagan Foundation

1629 K Street NW ● Washington, DC 20006

202-210-5431(direct) ● 202-478-0750(fax)