The three co-founders of Fusion GPS, the opposition research firm responsible for overseeing the creation of the infamous “Trump dossier”, will refuse to comply with a subpoena ordered by House Intelligence Committee Chairman Devin Nunes, according to a letter from their attorneys originally obtained by Business Insider.
But experts say the argument their lawyers are using to ask that they be excused relies on shaky legal grounds, and is unlikely to hold.
Attorneys from Cunningham, Levy & Muse said in a letter that, if called to testify, their clients planned to invoke their first amendment rights to exempt them from answering questions. The move - which has all the hallmarks of a stalling tactic - is the latest attempt by the firm’s founders, who reportedly were aware that not all of the allegations contained in the dossier were credible before turning it over to the FBI, to forestall delivering public testimony. Glenn Simpson, a former WSJ investigative reporter and one of the firm’s three founders, met privately with the Senate Judiciary Committee for ten hours over the summer. Afterwards, a group of senators, including Democrat Richard Blumenthal, pushed for Simpson’s testimony to be made public, and the committee is reportedly still mulling whether to release it.
However, Simpson and his fellow Fusion GPS co-founders Thomas Catan and Peter Fritsch, plan to invoke constitutional privileges and decline to testify before the House Intelligence Committee, their attorney wrote in a letter obtained by Business Insider on Monday.
"We cannot in good conscience do anything but advise our clients to stand on their constitutional privileges, the attorney work product doctrine and contractual obligations," wrote Fusion GPS counsel Josh Levy in response to subpoenas issued earlier this month by the committee's chairman, Rep. Devin Nunes.
Levy argued that complying with the subpoenas would violate "the First Amendment rights" of the cofounders "and would chill any American running for office ... from conducting confidential opposition research in an election."
"Should you compel any of our three clients to appear at the scheduled deposition, they will invoke their constitutional privileges not to testify," Levy wrote. "Since that will be the case, we ask that the Committee excuse them from appearing."
Imprisoned former Pharma CEO Martin Shkreli pled the fifth – the right against self-incrimination – when he appeared before a Congressional panel about prescription-drug pricing in February 2016. At the time, he had been indicted on eight counts of fraud.
Though he officially resigned from the investigation in April following his decision to brief Trump and the press about classified intelligence without first informing his fellow committee members, Nunes has helped steer the committee’s inquiry toward “unmaskings” ordered by Susan Rice and the credibility of the dossier. Many of the dossier’s most egregious claims – such as one alleging that the Russian government was in possession of an embarrassing video of the president – have been debunked.
Levy contended in the letter that Nunes' "unilateral issuance of these subpoenas violates your recusal and further undermines the legitimacy of this investigation."
Nunes reportedly issued the subpoenas just 24 hours after Fusion's counsel met with "majority and minority staff" for approximately an hour to discuss "a way forward for voluntary cooperation."
"Based on this Committee’s bad faith interactions with the undersigned counsel and its pattern of unprofessional conduct exhibited during different points throughout this investigation, you have left us with no choice but to advise our clients to assert their privileges in the face of these subpoenas," Levy wrote.
Renato Mariotti, a former federal prosecutor, told Business Insider that Fusion’s “novel” legal strategy was unlikely to succeed.
"That is probably why the attorneys have emphasized other arguments, like Nunes' apparent lack of authority to issue the subpoenas and the fact that Congress didn't authorize the investigation he's conducting on his own," Mariotti said.
"Those arguments have more merit, and they draw attention to Nunes' zarre behavior over the past month — including his subpoenas to the DOJ," he added. "That said, if the subpoenas issued by Nunes are valid, then I expect these individuals will be held in contempt if they refuse to testify as ordered."
Republican Rep. Mike Conaway, who is now heading the committee's investigation, reportedly approved Nunes' subpoenas to Fusion GPS, but House Intelligence Democrats told BI that they weren’t consulted.
Nunes reportedly turned his attention toward Fusion after the FBI refused to turn over documents pertaining to the dossier that were requested by Nunes. The chairman says he’s seeking the documents to help determine how the dossier played into the DOJ’s decision to launch multiple investigations into Russian interference in the 2016 election – including claims that Russia colluded with the Trump campaign to sway the vote in Trump’s favor.
DOJ has maintained that publicly disclosing the information that Nunes is requesting could compromise an ongoing investigation.
Last month, Senate Intel Committee Chairman Richard Burr said the committee’s investigators had “hit a wall” in their efforts to verify the claims contained in the dossier, in part because investigators couldn’t convince former British spy Christopher Steele, the man hired by Fusion to compile the dossier, to meet with them. However, CNN later reported that special counsel Robert Mueller had managed to interview Steele. While it’s unclear which, if any, of the claims contained in the dossier are true, the US intelligence community opted to omit the allegations from a crucial report released in January.
In summary, after months of resisting investigators’ overtures, it looks like the men behind Fusion GPS will finally be forced to answer some uncomfortable questions about the role they played in fostering the current climate of anti-Russia hysteria. We look forward to hearing what they have to say.
Read the letter below: