The House intelligence committee told a federal judge this week that it issued a broad subpoena for Fusion GPS’ bank records because so much of the investigation relies on classified information, and it can’t divulge details of what it’s looking for specifically.
Fusion, which assembled the 35-page anti-Trump dossier that emerged late in last year’s presidential campaign, has balked at the scope of the subpoena, saying if it knew what the House wanted, it could help narrow the search.
But House General Counsel Thomas G. Hungar told a judge during a phone conference held Tuesday that the committee is investigating matters beyond just the production of dossier and that its investigators must be allowed the freedom to search for all relevant information.
“It would be one thing if the bank could simply tell us everything that is relevant to what the committee needs, which is more than what Fusion seems to think it is. But the problem is the bank isn’t in a position to do that. Only the committee is,” Mr. Hungar said, according to a transcript of a Tuesday’s conference.
The negotiations come as the committee has sought to learn more about the dossier Fusion produced on President Trump amid the 2016 presidential campaign, and how federal investigators relied on the document as part of their own probe of Russian interference in the election.
Fusion, the opposition research firm that paid former British spy Christopher Steele to conduct research on Mr. Trump, has raised concern over disclosure of its client list, arguing that such a breach of client confidentiality would harm its business and violate its clients’ First Amendment right to anonymously engage in political activity.
During Tuesday’s call, Fusion attorney William Taylor pushed for the company to be able to identify and provide either the court or the committee with just the bank records related to the dossier.
The subpoena sought all the company’s bank records dating back to August 2015, including including current account balances and past transaction.
But Mr. Hungar said such an arrangement wouldn’t work as the company couldn’t be trusted to pick and chose the appropriate documents and wouldn’t know which documents are of interest to congressional investigators.
“No. 1, the committee can’t simply leave it to Fusion to decide what it thinks is relevant to the committee’s needs because, No. 1, the committee’s information on what it needs is based on classified information that it can’t even reveal to Fusion,” Mr. Hungar said. “No. 2, Fusion’s conduct to date has not given the committee any confidence to believe that Fusion will proceed in good faith in identifying relevant, responsive information that would be relevant to the committee inquiry. And No. 3, the committee’s interest, even based on publicly available information, is not limited to the dossier.”
U.S. District Judge Tanya Chutkan, who has pushed the subpoena compliance date back to 9 a.m. Friday, raised concern about the breadth of the House committee’s subpoena, including “its effect on activity and association protected by the First Amendment.”
The judge expressed apprehension about issuing a ruling in the case, noting she didn’t “want to overstep my bounds,” and encouraged the the parties to negotiate an agreement.
“I really am very reluctant to get any further involved that I need to, because this concerns Congress’s clear right to investigate matters that they believe deserve investigation, and I don’t want to insert the judicial branch into this any more than it needs to,” she said.
Hours after Tuesday’s conference took place, the law firm Perkins Coie admitted that Hillary Clinton’s presidential campaign and the Democratic National Committee had paid for Fusion’s research amid the 2016 presidential campaign. The law firm confirmed that it had been representing the interests of the DNC and Mrs. Clinton’s campaign when it paid Fusion for services between April and October 2016.
But the identity of at least one other entity, said to be a Republican, that paid for Fusion’s dossier research remains unknown.
The House Intelligence Committee defended the broad scope of its subpoena for Fusion GPS’ banking records, telling a federal judge this week that investigators can’t divulge classified information to the company in order to narrow their request and that the investigation goes beyond the dossier Fusion produced on President Trump.
One possible solution advanced by Mr. Hungar was for the committee to review bank records while they remained in the custody of the bank, and then to obtain copies of only those documents deemed relevant to the investigation.
Judge Chutkan expressed skepticism of that approach as well, saying it didn’t resolve Fusion’s concerns about client confidentiality.
“This is an organization that, whether it be for profit or not, engages in political activity, and they are hired by entities, including law firms, with the expectation of confidentiality, which is not to say that ht congressional committee doesn’t have interests that may trump those expectations of confidentiality.”
If the committee staff were to examine every single financial document relating to Fusion, “the dangers that the plaintiffs highlight to their clients’ interest would still remain,” she said.
She suggested that the House begin by modifying its subpoena, noting that subpoenas issued to Fusion officials Glenn Simpson, Thomas Cantan and Peter Fritsch were much more narrowly drawn.
“I’m not certain why the subpoenas themselves can’t be modified as a starting position, and then if the House believes that somehow there’s material that is not being turned over that they’re entitled to, then there could be further negotiation,” she said. “It seems to me that there are a number of ways for the House to get the information that they are genuinely entitled to without trampling on First Amendment concerns.”
The parties are expected to inform the judge by 3 p.m. whether they have negotiated a solution.
A spokesman for Devin Nunes, the Republican chairman of the House Intelligence Committee, said Thursday afternoon that negotiations were ongoing but he couldn’t get into the details of what was being considered as part of the settlement.
The spokesman, Jack Langer, said the committee has not had any negotiations with the third unnamed party said to have begun paying for Fusion’s research on Mr. Trump in 2015.
“It’s a bit of an enduring mystery,” he said.
• Andrea Noble can be reached at anoble@washingtontimes.com.
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