Politics & Policy

Clinton E-mails: Is the Fix In?

(Adrees Latif/Reuters)
Obama’s Justice Department shields Cheryl Mills from FBI’s questions

There was an extraordinary report in Tuesday’s Washington Post about the Clinton e-mail investigation. It involved the government’s interview of longtime Clinton consigliere Cheryl Mills. It details how Justice Department attorneys made an agreement with Mills’s attorney to cut off questioning about a key aspect of the case.

Mills, who is a lawyer, was represented at the interview by a lawyer named Beth Wilkinson. As is customary in these situations, the questioning was conducted jointly by FBI agents and Justice Department prosecutors. Yet when things got dicey, it seems the Justice Department prosecutors worked jointly with Ms. Wilkinson to block the FBI from asking about Mills’s collusion with Clinton in the belated provision of thousands of Clinton’s e-mails to State — provided only after nearly 32,000 of those e-mails were deleted.

The Post’s Matt Zapotosky describes the incident this way:

Near the beginning of a recent interview, an FBI investigator broached a topic with longtime Hillary Clinton aide Cheryl Mills that her lawyer and the Justice Department had agreed would be off-limits, according to several people familiar with the matter.

Mills and her lawyer left the room — though both returned a short time later — and prosecutors were somewhat taken aback that their FBI colleague had ventured beyond what was anticipated, the people said.

The report subsequently elaborates (the italics are mine):

The questions that were considered off-limits had to do with the procedure used to produce e-mails to the State Department so they could possibly be released publicly, the people said. Mills, an attorney herself, was not supposed to be asked questions about that — and ultimately never was in the recent interview — because it was considered confidential as an example of attorney-client privilege, the people said.

Though reported matter-of-factly, this is quite amazing.

The first remarkable thing to note is that there is a press report at all. This is supposed to have been a law-enforcement interview in a criminal investigation. Those are supposed to be non-public, much like grand-jury proceedings.

You may recall that there are various ongoing Freedom of Information Act (FOIA) lawsuits in which journalists and watchdog groups are seeking access to information about Mrs. Clinton’s improper private e-mail system. While the Obama State Department has been slow-walking disclosures, the Obama Justice Department has been fighting off the FOIA lawsuits by representing to federal judges that allowing information to become public at this time could compromise the FBI’s investigation.

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Yet the Post can only have gotten the information published in its report from leaks by the Justice Department. Indeed, Mr. Zapotosky writes that goings-on in the Mills interview were described to the Post “by several people, including U.S. law enforcement officials, who spoke on condition of anonymity because the investigation is ongoing and those involved could face professional consequences for discussing it publicly.” (Emphasis added.)

Isn’t that special? The “U.S. law enforcement officials” know it is unethical for them to be speaking about what happened in an investigative interview. Do they resolve this ethical “dilemma” by ethically refraining from comment? No, they unethically leak to the press in cowardly anonymity — your government at work.

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It is even possible (though by no means certain) that the Post’s pipeline includes a government lawyer who participated in the interview. It is interesting, to say the least, that the report, which heavily relies on anonymous government sources, somehow manages not to reveal the names of the government officials who participated in the events the report describes.

The other preliminary matter worth noting here is that the Post is completely in the tank for Mrs. Clinton and her minions. So what are we to make of the fact that the Obama Justice Department chose the Post to funnel its leak to?

The upshot of the Post’s patent partisanship is that we do not learn key details that paper is no doubt in a position to tell us.

The report advises us that “so far, investigators have found scant evidence tying Clinton to criminal wrongdoing” — and how would the Post know that? In the middle of the report, moreover, readers are invited — in blue italics — to check out another report entitled, “Officials: Scant evidence that Clinton had malicious intent in handling of e-mails.” Sounds great for her . . . especially since they conveniently fail to tell you that “malicious intent” is not required to prove felonious mishandling of classified information. In fact, gross negligence would do, so if there really is even “scant” evidence of malicious intent, that suggests it would be fairly easy to prove the crime.

Details, details. In any event, the upshot of the Post’s patent partisanship is that we do not learn key details that paper is no doubt in a position to tell us (especially since the article makes clear that Ms. Wilkinson, Mills’s lawyer, is also a very willing source).

For example, did Mills get immunity?

#share#The report states that “investigators consider Mills . . . to be a cooperative witness.” Again, the Post can know that only if its Justice Department sources are telling it so. But more to the point, as I’ve previously laid out in some detail, there are all kinds of “cooperative witnesses.” Some, for example, are mere innocent observers who have nothing to do with potentially criminal activity and unconditionally cooperate with law enforcement because they are not suspects. Others may be accomplices in the potentially criminal activity; they generally cooperate only if promised immunity, or at least a reduction of criminal charges.

What is Mills’s status? Were there conditions placed on her interview? Would she really voluntarily cooperate, no strings attached, with government officials who have prosecutorial authority? After all, Mills has a record of being uncooperative even under circumstances where government investigators were not in a position to file criminal charges against her.

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For example, earlier this year, a State Department inspector general (IG) issued a report regarding the department’s appalling record of non-compliance with FOIA during Clinton’s tenure. It noted that Mills was well aware that Clinton’s e-mails circumvented State’s filing system and therefore were not searched in order to determine whether some were responsive to FOIA requests. This was a violation of federal law, which requires each government agency to undertake a search that is “reasonably calculated to uncover all relevant documents.” (See Report at p. 8 & n.29 and pp. 14-15.) Mills not only failed to ensure that such a search was done; she knowingly allowed the State Department to represent — falsely, it turned out — that it possessed no responsive documents.

We now know that, when IG investigators attempted to question Mills to ascertain why she did that, she told them, through her lawyer, that she refused to speak with them. (See January 27, 2016, letter of Senate Judiciary Committee chairman Charles Grassley (R., Iowa) to Secretary of State John F. Kerry.) She had good reason to take that position: Obstructing an agency’s lawful compliance with a FOIA request could constitute a felony. For present purposes, though, the point is that Mills’s refusal to cooperate with the State Department IG suggests she has concerns about potential criminal jeopardy. It thus seems highly unlikely that she consented to an interview by FBI agents conducting a criminal investigation unless she was given some form of immunity.

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As I have previously explained, a person in her position generally has three choices: (a) she could assert her Fifth Amendment privilege against self-incrimination and refuse to submit to FBI questioning unless the government gave her immunity from prosecution — which would be legally prudent but, if it became public, politically lethal; (b) she could agree to testify before the grand jury, during which she would have to face questions from a prosecutor and the grand jury without having her lawyer present, and would risk incriminating herself; or (c) she could agree to submit to an interview by agents and prosecutors, with her attorney permitted to be present, in exchange for qualified immunity. This qualified form of immunity would be memorialized in a proffer agreement — the so-called Queen for a Day arrangement — in which the government agrees not to use the witness’s interview statements against her at any future proceeding. (There are some important reservations, including the right to prosecute the witness for any false statements during the interview.)

Option (c) is the usual preference for “cooperative” witnesses who have potential criminal exposure but feel they can’t afford to take the Fifth for political reasons. It allows their lawyers to be active participants in the interview — to call timeout, for example, if questioning paints the witness into a corner where she must either admit guilt or lie.

So was Mills given at least qualified immunity in exchange for answering the FBI’s questions? The Post doesn’t tell us.

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By contrast, the Post takes pains to note that Brian Pagliano, the old Clinton hand who was hired by the State Department during Hillary’s tenure and serviced her homebrew server, “was granted immunity so he would cooperate as part of the probe.” Oddly, Mr. Zapotosky immediately follows that fact with the assertion that “there is no indication a grand jury has been convened in the case.” But a grant of immunity is an indication that grand-jury activity may be underway. We don’t know what kind of immunity Pagliano got. If it was full immunity by judicial order, however, that would be for the express purpose of grand-jury testimony. And if it was qualified immunity, it would likely be because the government anticipates his cooperation in making a case against other suspects — which would require a grand-jury indictment.

That brings us to the most intriguing part of the Post’s report. Again, the Post says the FBI tried to ask Mills about “the procedure used to produce [Clinton’s] e-mails to the State Department.” Mills’s lawyer promptly called timeout, leaving the room with Mills so they could consult. When they returned, Mills was not required to answer the FBI’s question on this crucial topic. It turns out the Justice Department’s lawyers had made an agreement with Mills’ lawyer — seemingly unbeknownst to the FBI — that this topic would be off-limits due to “attorney-client privilege.”

Why would the Justice Department agree to such a restriction? Here, the Post kicks up some sand, tossing into the mix that Mills is “an attorney herself.” But as someone once said, what difference, at this point, does that make?

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Mills was not Clinton’s lawyer — not at the State Department and not in the production of the e-mails to the State Department nearly two years later. Mills was a government official when the improper e-mail communications arrangement was in use. Her own actions and communications with Clinton and others in connection with the production — and destruction — of e-mails is highly relevant.

Moreover, absent a written waiver from the government, the rules of professional ethics forbid a lawyer who has been a public official from representing a client “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.” This rule would bar Mills from acting as Clinton’s lawyer even if another obvious conflict of interest did not already prevent such an arrangement (namely, the fact that they are joint participants in potentially criminal transactions under investigation).

Remember, Clinton, Mills, and other top Clinton staffers knew that Clinton’s e-mails were not preserved in State Department files. They knew this notwithstanding that federal law and procedure, which discourage any use of private e-mail accounts for government business (let alone systematic use of private e-mail), require that, if private e-mail is used for an official communication, a copy of that communication must be placed in government files. Clinton and Mills well knew that this was not done. The e-mails remained stored on Clinton’s private server for nearly two years after Clinton and Mills left the State Department at the end of President Obama’s first term in early 2013.

#share#In December 2014, under pressure from public and congressional demands for information, the State Department finally requested that Clinton surrender any government records she may have kept when she left. Only then did Clinton acknowledge the homebrew server system on which 62,320 e-mails were said to be stored. Of these, only 30,490 were turned over to the State Department — in a paper form that was impossible to search digitally, forcing the Department to expend mammoth resources and taxpayer dollars to scan them into its filing system. Clinton then unilaterally deemed the remaining 31,830 e-mails “private, personal records” — which she undertook to destroy by deleting them, despite their having been significant enough to preserve up until that point.

RELATED: Obama’s Defense of Hillary’s E-mail Server Was Irrelevant

Destroying government files is a felony, every bit as much as is mishandling classified information. (See my column discussing federal embezzlement statute and Shannen Coffin’s column discussing federal concealment and destruction statute.) Moreover, if those 31,830 e-mails contained information responsive to FOIA requests, congressional investigations (e.g., probes of Benghazi and the State Department’s abuse of FOIA), or due-process discovery rules governing judicial proceedings (e.g., the Khatallah case involving the Benghazi massacre), attempting to destroy them by deleting them could amount to felony obstruction of judicial or other governmental proceedings.

Before Clinton tried to destroy those thousands of e-mails (some or all of which the FBI may since have been able to retrieve from the server), it was her duty to review them with the State Department to assure its concurrence that they were indeed private. For now, we have only the dubious say-so of Clinton and her confederates. The FBI and the rest of us are expected to believe one of the highest-ranking, busiest officials in the United States government had time for 31,830 e-mails about yoga routines, wedding gowns, and the like.

How can it be possible that the FBI is not being permitted by the Justice Department to ask a key witness — an accomplice witness — about one of the central transactions under investigation?

On what basis could the Justice Department have sided with Mills’s attorney against the FBI?

The Post rationalizes that “it is not completely unknown for FBI agents and prosecutors to diverge on interview tactics and approach.” That’s ridiculous. This was not tactical. This was not a disagreement over whether to play “good cop/bad cop.” This was a disagreement about the substance of the case, about what the FBI is permitted to investigate. And by the way, if (as I suspect) Mills has been given some form of qualified immunity, part of the rationale for doing that is to have a free-flowing interview with no fact matters under investigation excluded from inquiry.

So on what basis could the Justice Department have sided with Mills’s attorney against the FBI? The answer may be found by carefully parsing (as one must always do with the Clintons) an unsworn statement Clinton’s office put out last October.

The statement claims that, upon receiving the State Department’s December 2014 request that she provide any government records she kept when she left, “Secretary Clinton directed her attorneys to assist by identifying and preserving all emails that could potentially be federal records.” The statement then shifts to the passive voice, such that we are told about how this and that search “was conducted” — but not by whom, and with no light shed about communications during the process, particularly in connection with the thousands of e-mails Clinton tried to erase from her server.

#related#Shannen Coffin has previously noted Clinton’s desperate attempt to blame her attorneys for her misconduct. But do she and Cheryl Mills really believe that by involving lawyers in their joint activities — activities that were fraught with potential improprieties and were undertaken in conjunction with people who were not their lawyers — they can shield those activities from criminal investigation under a haze of “attorney-client privilege”?

More important, does the Obama Justice Department believe that?

If so, somebody ought to let the local mafia boss know that if he wants to avoid federal prosecution, all he needs to do is bring his lawyers along the next time the goodfellas get together to divide the spoils and decide who needs to get “whacked.”

Or could it be it’s just the Hillary Clinton case in which the Obama Justice Department is playing for the wrong team?


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