Mid-Year Exam, Part 2: A Dubious Investigation

(AP Photo/J. Scott Applewhite, File)

For background, see part 1 here.

As part of an agreement between the DOJ and Clinton’s lawyers, the FBI could not gain access to Clinton Foundation emails on the private server.  In sworn testimony, Strozk knew that there were Clinton Foundation emails on at least one device.  He stated that DOJ lawyers (possibly Page) determined the FBI lacked probable cause to get a warrant to do so.  Handing over the server to the DOJ was on a consensual basis between the DOJ and the Clinton camp with restrictions on what could be searched.  

Specifically off limits to investigators were certain domain names, date ranges, and particular people.  According to some, at the time, despite these constraints voluntarily agreed to by the DOJ, Comey was seriously considering possible charges under the Espionage Act of 1917.  At this point, Comey was under the belief that Clinton had shown “gross negligence.”   However, lawyers in the DOJ believed that the language was “constitutionally vague,” which is disingenuous since the Obama administration had no restraints on using the Espionage Acts in other contexts.

In early 2016, the FBI and DOJ started to prepare for an interview with Hillary Clinton.  Page, Strozk and McCabe began to discuss this in a series of texts as they worried about the number of people who would interview her.  The team wanted the number limited since she could be the next President and “it could upset her.”  Page was the one particularly worried and texted Strozk whether he and Bill Priestap, the FBI assistant director, thought three from both sides would be the right number.  She closed with this statement: “One more thing: she might be our next president.  The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more doj than fbi?”  

Soon after, she texted another adviser to McCabe: “Hey, if you have one opportunity to discuss further with andy, please convey the following: She might be our next president. The last thing we need is us going in there loaded for bear, when it is not operationally necessary. You think she’s going to remember or care that it was more doj than fbi? This is as much about reputational [sic] protection as anything.”  The person said they would follow up with McCabe the next morning.  

The following morning, Page texted McCabe directly with the same message.  Both Page and Strozk explained later that based on Page’s experiences as a prosecutor, a smaller group was more conducive to building rapport in an interview.  It appears that no matter how many people joined the interview, the goal was not to be too aggressive with Clinton.  Ironically, the interview was conducted by eight, not six or four, officials.  

In April, 2016 Barack Obama gave an interview to 60 Minutes when the issue of the private email server came up.  Although stating it was a mistake for her to use a private server to conduct State Department business, he also said: “I don’t think it posed a national security problem.  This is not a situation in which America’s national security was endangered.”  

This can be interpreted a couple of ways.  Perhaps, Obama knew more than he was letting on regarding the investigation and had involved himself in it despite statements to the contrary.  Or, perhaps he was just dismissive of national security.  In any case, this is a rather stark comment coming from the President considering that the previous month the DOJ was punching back against the FBI and Comey regarding consideration of using the Espionage Act and labeling Clinton’s actions grossly negligent.  

We do know that Obama caused some rancor within the FBI as they interpreted the comments to mean that the President had already made up his mind and had cleared anyone of any wrongdoing.  The White House quickly backed off the comments and said Obama was not trying to influence an ongoing investigation, including one that had yet to interview the key person involved.

On May 2, Page texted Strozk to tell him she had an update on MYE that day.  Two days later, Ted Cruz dropped out of the race and Trump became the presumptive Republican candidate for President.  Page wrote: “It’s going to be a Clinton-Trump race.  Unbelievable.”  Strozk replied: “Now the pressure really starts to finish MYE.” 

Perhaps, they felt pressured to end the investigation so as not to drag it out into the campaign season so the FBI could not be accused of interfering in the election.  But, we also know that about this time it was pretty much decided that there would be no forthcoming charges being filed against Clinton.  We know that Comey had already begun a draft summary for an announcement.  We know that Strozk had him change the words “grossly negligent” in that draft.  The FBI was coming to these conclusions without yet interviewing Clinton.  The only way the FBI would consider charges against Clinton is if she lied or confessed.  Otherwise, she was going to get a free pass and some nasty words from the FBI.  

There was also the problem of Clinton’s legal representation for the impending interview.  The DOJ approved the presence of Cheryl Mills- a highly unusual move considering Mills was regularly on Clinton’s email address and she testified as a material fact witness about her personal knowledge of the private server.  Yet, she claimed to be Clinton’s lawyer even though she did not serve that role when at the State Department.   

She claimed she became Clinton’s lawyer in 2013 after she left the State Department to coordinate the response to the State Department’s demand for the return of her emails.  When asked about Bryan Pagliano, Mills invoked attorney-client privilege and refused to answer any questions by investigators about the server setup.  The problem with this claim is that her knowledge of facts learned while serving in a non-legal capacity at the State Department cannot possibly be protected by an attorney-client privilege. How did Mills get around this?

To fix that problem, Mills conveniently claimed that she did not know anything about Clinton’s email setup during her tenure at the State Department and only learned of relevant facts in her later capacity as Mrs. Clinton’s personal lawyer.  But this raised a new problem — Mills quite obviously knew about Clinton’s email setup while she was at State.  Mills’s implausible claim she was unaware of the nature of Clinton’s email setup during her tenure at State is undermined by documents showing that Mills was deeply involved as chief of staff in resolving questions regarding Clinton’s email use.

A March 2009 memo addressed to Mills from the assistant secretary for diplomatic security, for instance, advised against Clinton and her staff using BlackBerry devices in the executive suite, known as “Mahogany Row,” because it was a secure area. Similarly, in August 2011 an email chain addressed “communications issues” flagged by Mills, including a suggestion from State Department IT officials (later rejected by Huma Abedin) regarding the possibility of a State-issued BlackBerry for Clinton.

Mills also invoked the attorney-client privilege based on the claim that certain facts she became aware of as Clinton’s chief of staff were off-limits because she had “refreshed her recollection” as to those facts during her time representing Clinton in the private sector. But, Mills could only “refresh” her recollection because she had knowledge of those facts during her tenure as Clinton’s chief of staff, putting those facts well beyond the protection of any privilege.

How did Mills get away with her specious attorney-client privilege claims? How, for that matter, did she get away with serving as Clinton’s lawyer on matters being criminally investigated that she participated in as a federal employee?  The answer is simple:  the Department of Justice never raised any objections.  In effect, the FBI is investigating whether there was a criminal mishandling of classified information by Clinton, and possibly by Mills also, while allowing a material witness to be the legal counsel for Clinton.

Next: Clinton’s exoneration… again.