Politics & Policy

Why Hillary Clinton’s E-Mail Scandal ‘Lawyers’ Are So Problematic

(Reuters photo: David Becker)
Clinton aides Cheryl Mills and Heather Samuelson should have been treated as suspects by the FBI — not privileged Clinton attorneys.

The more information that drips out about the Clinton e-mail investigation, the more we learn that two key subjects, Hillary confidants Cheryl Mills and Heather Samuelson, got extraordinarily special treatment — concessions that would never be given to subjects in a normal investigation. The primary reason for this is that the Obama Justice Department was never going to charge Hillary Clinton and her accomplices with crimes.

The guise under which Mills and Samuelson got the kid-glove treatment was their status as lawyers. Crucially, this status was the Justice Department’s pretext for resolving that potentially incriminating evidence against them, and against their “client,” Mrs. Clinton, had to be shielded from investigators pursuant to the attorney-client privilege.

Except neither Mills nor Samuelson was eligible to represent Clinton in matters related to the e-mails, including the FBI’s criminal investigation. Moreover, even if they had arguably been eligible, attorney-client communications in furtherance of criminal schemes are not privileged.

I wrote on Tuesday about the jaw-dropping allegation by House Judiciary Committee chairman Bob Goodlatte (R. Va.) that the immunity deals given to Mills and Samuelson were accompanied by at least two “side agreements.” One severely hampered the FBI’s examination of Mills’s and Samuelson’s laptop computers — the ones used to vet e-mails on Hillary Clinton’s server in order to determine which ones would be turned over to the State Department and which ones Clinton would hoard and destroy, falsely claiming that they were all “personal” in nature. The other side deal, astonishing if true, is said to have called for the FBI to destroy the laptop computers after the Bureau’s limited examination was concluded.

In congressional testimony last week, FBI director James Comey did not mention the side deals but did attempt to defend the immunity grant. He claimed it was justifiable because it is always very complicated for investigators when a lawyer’s computer becomes evidence in a criminal probe — it’s “a big meghillah” as he put it.

However colorfully expressed, Comey was making a category error. When a lawyer is implicated in a criminal investigation, which is not all that unusual, searching the lawyer’s computer tends to be complicated because there are likely to be privileged attorney-client communications on it. If the lawyer has a busy practice, many of those communications will have nothing to do with the investigation in which the lawyer is a suspect. That is not an immunity issue. It is a privilege issue. The problem is routinely addressed, without a grant of immunity, by a screening procedure that prevents the prosecutors and agents investigating the case from getting access to any communications that are legitimately protected by attorney-client privilege.

Chairman Goodlatte’s letter indicates that just such a procedure was employed in the limited search of the Mills and Samuelson computers. This underscores that the immunity grant was wholly unnecessary. Granting immunity does nothing to resolve attorney-client privilege complications, just as the screening procedure does nothing to shield the lawyer from prosecution for any non-privileged incriminating evidence.

The Obama Justice Department was never going to indict Hillary Clinton.

Mills and Samuelson were given immunity in exchange for surrendering their laptops not because searching lawyers’ computers is complicated, but because the Justice Department had no intention of prosecuting them. That is also why Justice severely limited the FBI’s search of the laptops, just as it severely limited the FBI’s questioning of Mills. Mills and Samuelson were given immunity because Justice did not want to commence a grand-jury investigation, which would have empowered investigators to compel production of the laptops by simply issuing subpoenas. Justice did not want to use the grand jury because doing so would have signaled that the case was headed toward indictment. The Obama Justice Department was never going to indict Hillary Clinton, and was determined not to damage her presidential campaign by taking steps suggestive of a possible indictment.

My purpose here is not to rehash these points, all of which I’ve argued before. Instead, I am challenging the premise relied upon by the Justice Department to make evidence unobtainable and the case un-prosecutable, namely: that Mills and Samuelson were properly regarded as lawyers, not suspects.

To the contrary, they were disqualified from acting as attorneys in the Clinton e-mail controversy from the start. It was not merely unethical but unlawful for Mills and Samuelson to represent Clinton in this matter. Legally, they were barred from providing representation; factually, they do not appear to have been much engaged in the practice of law at the time they were drafted to vet e-mails. Their usefulness to Clinton was as accomplices, not legal advisers. Their claim of lawyer status is better understood as a scheme to obstruct the investigation by concealing potentially incriminating evidence under bogus assertions of attorney-client privilege. In this, they were indulged rather than challenged by the Justice Department.

To begin with, Mills and Samuelson should have been disqualified from representing Clinton in connection with the e-mail investigation under attorney ethics rules. Both were both subjects of the FBI’s investigation — suspected to be coconspirators of each other and of Mrs. Clinton. When a lawyer is a participant in the facts under investigation, she is burdened by intractable conflicts of interest — e.g., the client is entitled to objective advice about the merits of cooperating with the prosecutor, but how can the lawyer provide such advice if the client’s cooperation could subject the lawyer to prosecution? Consequently, a lawyer’s participation in the facts under investigation triggers the ethical rule against providing representation when doing so would create the appearance of impropriety.

In the case of Mills and Samuelson, it wasn’t just an appearance. This was textbook impropriety.

Apart from that, Mills and Samuelson were government officials when they first became involved in the matter under investigation: their boss’s conducting of government business — including classified business — on a private e-mail system, and failing to comply with federal recordkeeping laws. As I’ve explained a few times (see, e.g., here), attorney ethics rules forbid private lawyers who are former government officials from representing clients in matters in which they were involved while working for the government.

And here, we’re not just talking about ethics rules. As Shannen Coffin points out, federal statutory law makes it a crime for former government officials to try to influence the government in connection with matters they were involved in while working for the government. Mills and Samuelson are former State Department officials who, posing as private lawyers for Mrs. Clinton, sought to influence the government’s criminal investigation of Clinton — an investigation that arose out of then-secretary Clinton’s use of a private e-mail system while Mills and Samuelson worked for her and communicated with her through that very system.

Under ethical canons and federal law, then, there could not have been a legitimate attorney-client relationship between Clinton and either Mills or Samuelson for purposes of the e-mail investigation. But even if we assume for argument’s sake the permissibility of such a relationship, there remain other compelling reasons to reject the claim that the communications between Clinton and these lawyers were privileged.

Most obviously, the attorney-client privilege only covers legal advice. In directing Mills and Samuelson to vet her e-mails, Clinton was not seeking their legal advice. She was delegating to them a ministerial, non-lawyer task that every official who has retained government files is expected to perform upon leaving government service — a task Clinton could and should have done for herself. This isn’t complicated. For the vast majority of federal officials, the direction to “place in the agency’s files any documents you possess relating to agency work” is not the stuff of legal jeopardy.

If I’m the manager of a baseball team and I send a guy who happens to be a lawyer out to play catcher, his admission to the bar does not turn the signals he flashes to the pitcher into privileged communications. A non-lawyer job does not become a lawyer job just because a lawyer is asked to do it. And criminal conversations are not shrouded in attorney-client privilege by having lawyers participate in them.

Criminal conversations are not shrouded in attorney-client privilege by having lawyers participate in them.

I want to be clear here. Let’s say Mrs. Clinton called her principal lawyer, David Kendall, and said, “I’m worried that there’s classified information in the private e-mails the State Department is asking me to turn over, what should I do?” No one, least of all me, would suggest that this is not a privileged communication that should be shielded from government investigators. But let’s say Clinton tells Mills and Samuelson, “I’m too busy to sort through 62,000 e-mails and pick out the ones that relate to State Department business. You two figure it out.” That’s a directive Clinton could have given to any non-lawyer subordinates. The status of Mills and Samuelson as lawyers would not tuck this mundane process under a cone of attorney-client privilege.

Which brings us to another reason for rejecting assertions of attorney-client privilege in the Clinton e-mail scenario: the so-called crime-fraud exception. As we’ve noted before, even if there is a formal, legitimate attorney-client relationship, communications will not be shielded by privilege if (a) the client was committing or plotting a crime or fraud, and (b) the communications between attorney and client were in furtherance of that scheme. If Clinton, Mills, and Samuelson were complicit in obstruction of justice, destruction of government files, the mishandling of classified information, or other crimes, their conversations to facilitate those unlawful objectives are not protected by the attorney-client privilege.

Finally, it is worth considering how much law Ms. Mills and Ms. Samuelson were practicing after they left government service. Clinton has a legion of top-flight attorneys; how much was she really relying on Mills and Samuelson for legal services as opposed to other kinds of collaboration?

Mills did not function as a lawyer in her years as Clinton’s top State Department staffer. When she left State at the conclusion of Clinton’s tenure, she began running a development company called BlackIvy Group, which builds enterprises in Africa. She also sat on the board of the Clinton Foundation. She does not appear to have joined an established law firm. Nevertheless, according to the FBI’s interview report, she told investigators that, “[i]mmediately after completing her service” at State, she became “personal counsel for Hillary Clinton.”

Samuelson has been in the Hillary orb since 2002, when she became a young staffer in political-action committees that supported the then-senator. After working in Mrs. Clinton’s failed 2008 presidential campaign, Samuelson was invited to join Clinton at the State Department. She served as a senior advisor and White House liaison, apparently under Mills’s supervision. When Clinton and Mills left State, Samuelson lateraled to the Obama White House Counsel’s office for a little over a year, until April 2014. Shortly after that, according to the FBI’s report of its interview with Samuelson, she says she became “Clinton’s personal attorney.”

Interestingly, Mills told the FBI that Samuelson had “joined Mills’ firm” in order to become Clinton’s personal attorney. Samuelson appears not to have said anything to the FBI about Mills’s having a law firm. Her Linked-in profile page, in which she describes herself as a Washington-area attorney specializing in government administration (not criminal defense), says nothing about working at a Mills law firm. Nor, oddly, does it mention what would be, if she really had it, the most prominent job she has ever held: personal attorney for a major-party candidate for president of the United States. That is omitted even though Samuelson takes pains to list her other, less flashy work experience, going back 14 years.

Last year, Politico reported that Mills had “tapped Samuelson to help her and Clinton’s other lawyer, David Kendall, to screen Clinton’s emails[.]” If the scope of her work as Clinton’s “personal attorney” was broader than the e-mail caper, that is not apparent. Even when Samuelson was among the lawyers present at Clinton’s testimony before the House Benghazi Committee in October 2015, the main topic was the e-mails.

Hillary Clinton systematically used a private server system to conduct government business because she hoped her e-mails would never see the light of day.

The Politico report elaborates that Samuelson moved to Brooklyn in 2015 to work on Clinton’s presidential campaign. But she never formally started. Once Clinton’s e-mail became a public controversy, “things got really complicated,” according to an unidentified friend of Samuelson’s. As we should recall, the New York Times broke the news of Clinton’s private e-mail system on March 3, 2015, rocking the nascent campaign just a few weeks before Clinton formally announced her presidential bid on April 12. Plainly, this called unwanted attention to the fact that Samuelson, who did the first cut through Clinton’s e-mails, apparently “missed” thousands of government-related e-mails that Clinton insisted were “personal” and undertook to delete and destroy.

Maybe Mills really does have a thriving law firm, with Samuelson working by her side. But from here, it looks like their “practice” mainly involves covering Clinton’s tracks.

To summarize, Hillary Clinton systematically used a private server system to conduct government business because she hoped her e-mails would never see the light of day. In 2014, when the State Department requested that she turn over any State-related documents in her possession, she knew this would be a huge political problem and portended legal jeopardy. In an attempt to insulate herself and impede any potential criminal investigation, she transmogrified a ministerial review of her retained files into a legal matter: This simple task of locating and producing government-related e-mails was delegated to lawyers so it could be smothered in attorney-client privilege.

The two lawyers she chose, Cheryl Mills and Heather Samuelson, were trusted, long-time cronies who were actually disqualified from representing her on the matter because of their involvement in the facts and their status as former government officials. Furthermore, because their consultations appear to have involved mishandling of classified information, destruction of government files, and obstruction of official investigations and court cases, pertinent communications among Clinton, Mills, and Samuelson would not be shielded by attorney-client privilege in any event.

Yet, the Justice Department and the FBI accepted the claim that Mills and Samuelson were lawyers for Clinton. Accordingly, they turned a blind eye to potentially conspiratorial communications, immunized their potential criminal conduct, consciously avoided relevant evidence as if it were legitimately privileged, and reportedly even agreed to destroy evidence for Mills and Samuelson — after ostensibly investigating them for . . . destroying evidence.

Ms. Mills and Ms. Samuelson have law degrees, just like Mrs. Clinton does. But in this case they were not lawyers. They were suspects. And that’s how they should have been treated.

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