Judge Rules Fusion GPS Must Turn Over Bank Records

Wheels appear to be in motion across D.C. on several fronts. 

  • The DOJ is "taking a fresh look" into the Hillary Clinton email 'matter.' 
  • The FBI has launched a new investigation into the Clinton Foundation the day after the Clinton's Chappaqua property catches fire
  • Former FBI Director James Comey's full Clinton memo was released, revealing felony evidence of changes which "decriminalized" Hillary Clinton's behavior. Oh, and every one of the memos he leaked to his Cornell professor buddy was classified, per a sworn statement by the FBI's "chief FOIA officer" in a sworn declaration obtained by Judicial Watch.
  • The House Intelligence Committee will be granted access to "all remaining investigative documents," unredacted, along with all witnesses sought per a deal reached between Deputy Attorney General Rod Rosenstein and Nunes. 

The letter, from Nunes to Rosenstein, summarizes an “agreement” reached on a phone call Wednesday evening and also says key FBI and Justice Department witnesses in the probe will be provided for interviews later this month.

The agreement comes after the DOJ and FBI faced a Wednesday deadline to comply, under the threat of new subpoenas and even contempt citations. Under deadline pressure, FBI Director Christopher Wray and Rosenstein met Wednesday with House Speaker Paul Ryan, R-Wis., to discuss the demands from the intelligence committee. -Fox News

And now, days after Fusion GPS penned a vigorous self-defense in the New York Times, a Federal Judge struck has down a request by Fusion to block the House Intelligence Committee from obtaining complete banking records in relation to their activities during 2016. Fusion sought to invalidate a subpoena issued by Committee chairman Devin Nunes (R-CA), which they tried to claim was issued illegally as well as a violation of the 1st Amendment. U.S. District Court Judge Richard Leon struck down all four of Fusion's request in his order, which is a great read.

Federal District Court Judge Richard J. Leon


A few highlights from the order:

Judge Leon addressed each aspect of Fusion's request and why he so disagreed, which is why it takes Judges forever to write these things: 

1. Fusion asserted that Nunes went rogue and issued the subpoena by himself, "pursuant to no resolution" by the committee, and he recused himself when he had Rep. Mike Conway temporarily take charge of the investigation, therefore Nunes had no authority to request Fusion GPS bank records. 

Judge Leon shut that down immediately:

"Nowhere in this press release did Chairman Nunes "recuse" himself" from the Russia investigation. Instead, he simply designated another Committee member to take charge of the investigation, as permitted by Committee Rules

2. Fusion then requested that Judge Leon narrow the scope of the release to exclude 10 law firms on the grounds that  "[n]one of the law firms about which Intervenor seeks information (other than Perkins Coie and Baker Hostetler) contracted with Fusion GPS to perform work related to Russia or Donald Trump, in any way.

Fusion also alleges that transactions with certain media companies, journalists, and businesses are "not pertinent."

Judge Leon responds, telling Fusion that the mere fact that two law firms paid Fusion GPS for work related to Trump provides a "reasonable basis to believe that Fusion's transactions with other law firms during the same time frame may reveal similarly relevant information," adding "The Committee also has intelligence suggesting that Fusion directed Steele to meet with at least five major media outlets to discuss his work on the Trump Dossier. It is thus reasonable for the Committee to pursue records containing Fusion's transactions with various media companies and journalists to determine whether they, too, had involvement with the Trump Dossier or with Russian active measures." 

the Committee possesses intelligence that links these businesses to Russia and Russian operatives, and thus the transactions between Fusion and these businesses could potentially enable the Committee to investigate the nature of these relationships." -Judge Leon

3. Next, Fusion tried to suggest that if their bank hands over their records, it would infringe on Fusion's first amendment rights to engage in free political speech, free political activity, and free association - as it would reveal the identity of its clients, and thus would hinder them from contracting anonymously with Fusion in the future. 

In other words: our other clients are going to be really pissed and we'll lose business because of it. 

Judge Leon responds: "Unfortunately for the plaintiff, I cannot agree" - on the basis that Fusion's commercial relationship with its clients does not provide Fusion with "some special First Amendment protection from subpoenas," since it would allow "any entity that provides goods and services to a customer who engages in political activity to resist a subpoena on the ground that its client engages in political speech." 

Surely, to recase a line from the great Justice Robert H. Jackson, the First Amendment is not a secrecy pact! -Judge Leon 

4. Lastly, Fusion tried to argue that turning bank records over to Congress would violate 12 U.S. Code § 3401 - Right to Financial Privacy statute which "prohibits banks from releasing customer records to a Government authority," along with "nonaffiliated third party" personal information. 

Leon responds: "Ultimately, I find both of plaintiff's arguments to be without merit. How so?"

First, because Fusion "has no rights under the RFPA because it is not a "person" who may qualify as a "customer" for the purposes of that statute, adding "Unfortunately for the plaintiff, the text of the statute equally forecloses Fusion's claim of rights." under the nonaffiliated third party statute. 

* * *

In conclusion, Judge Leon rules that the Devin Nunes' subpoena "was issued pursuant to a constitutionally authorized investigation by a Committee of the U.S. House of Representatives with jurisdiction over intelligence and intelligence-related activities -- activities designed to protect us from potential cyber-attacks now and in the future," adding "Thus, because I find all of Fusion's objections to the Subpoena to be unavailing, Fusion cannot satisfy the first factor of its burden for obtaining a preliminary injunction - a likelihood of success on the merits - and I need go no further. 

"Plaintiff's motion must therefore be DENIED." 

The full filing is below