A federal judge overseeing a legal dispute between Fusion GPS and the House Intelligence Committee suggested Thursday that forcing the private investigation firm to identify more of its clients and vendors wouldn’t run afoul of the First Amendment.
U.S. District Court Judge Richard Leon repeatedly noted that data the intelligence panel is seeking from Fusion’s bank as part of the investigation into Russian influence in the 2016 election would reflect only the names of those who exchanged funds with Fusion and the amounts of those transactions, but would not reveal the substance of what the firm did.
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“It would be clients and vendors and the amount, but not what the work was for,” said Leon, who issued no immediate ruling.
Fusion GPS, the investigative outfit that commissioned the so-called dossier of accurate, inaccurate and unverified claims relating to Donald Trump’s alleged ties to Russia, has asked the court to block or narrow a subpoena the House Intelligence Committee issued to the firm’s bank.
A Fusion lawyer, Stephen Salky, argued that letting the panel pry further into the records would intrude on the firm’s right to associate anonymously with individuals and organizations engaged in First Amendment activity, like political opposition research.
“The very dossier was about political speech and was about investigating one candidate for the presidency on behalf of another candidate for the presidency,” Salky said. “If that’s not in the heartland of the First Amendment, the work that was done, I don’t know what is.”
Fusion said the House panel was not entitled to rummage through the firm’s records, whether those are directly in Fusion’s possession or held by a bank.
“Congress cannot without any relationship or relevance to an investigation simply roam around in a party’s private affairs,” Salky said.
Some of Fusion’s most prominent clients have already been identified.
In October, as the House panel pressed for the financial records, Washington law firm Perkins Coie confirmed that the Democratic National Committee and Hillary Clinton’s presidential campaign paid to produce the dossier. A conservative website, The Washington Free Beacon, and its benefactor, Paul Singer, acknowledged paying Fusion earlier in the campaign season to develop negative information about Trump.
Financial records related to the dossier and to Fusion’s work for a law firm representing a Russian bank, Prevezon, were turned over to the panel several weeks ago. However, the committee is pressing for additional information on Fusion’s dealings with other law firms, as well as vendors and a media company, Salky said.
The House general counsel, Thomas Hungar, picked up on Leon’s mentions of the limited nature of the financial records and their lack of detail about what Fusion did.
“Whatever burden you could possibly imagine on First Amendment rights here is trivial,” he insisted.
Hungar also argued that while Fusion has warned that its business would vanish if its clients were revealed, the disclosure that the firm was working for the Clinton campaign and the DNC didn’t seem to have shut down the firm.
“That is the core of what the plaintiff was claiming, when it filed this lawsuit, would be the end of the world,” the House lawyer said.
Hungar said it would be inappropriate and perhaps even unconstitutional for the court to conduct a document-by-document review of what the panel is demanding and how closely it relates to the committee’s investigation.
“It’s highly disrespectful to a coordinate branch of government,” Hungar said. “It would go far beyond the proper role of a federal court.”
Leon also noted that the panel has claimed there are classified aspects to its investigation that go beyond the publicly announced goals, which could complicate the court’s effort to determine the relevance of the documents.
Salky, however, argued to Leon that he has a duty to safeguard the First Amendment rights at stake.
“We don’t think the court is a potted plant,” Salky said.
The hearing lasted about 40 minutes in a public session before reporters and others observers were kicked out for a session to discuss aspects of the case that remain under seal, including an agreement Fusion and the House Intelligence Committee reached late last month in a bid to settle the dispute. Within a matter of days, that settlement appeared to fall apart as Fusion returned to court and accused the committee of breaching the agreement.
Another district court judge, Tanya Chutkan, was previously assigned to the case and urged the two sides to strike a deal. Just after the dispute arose, the case was reassigned to Leon. Leon disclosed Thursday that Chutkan had recused herself from the case. He did not say why.