Last week, the disclosure of a total
of five immunity agreements handed out by the Justice Department as part of its
investigation of the Clinton email scandal. The extent of the deals and the
recipients were surprising, particularly in the failure to previously disclose
those deals. As a criminal defense lawyer, I was surprised to see the deals
include Cheryl Mills, one of the highest officials accused in the deletion of
tens of thousands of emails and the failure to heed warnings over the risk to
national security from the use of the Clinton private server. Below is the
column.
When FBI Director James B. Comey
announced that there would be no criminal charges in the Clinton email scandal,
there was an outcry by many who saw glaring contradictions, attempts to destroy
evidence, and knowing failures to protect classified or sensitive information.
At the time, I acknowledged that Comey’s decision was understandable and, while
criminal charges might have been possible, this was not out of bounds of
prosecutorial discretion. However, the news this week of a previously
undisclosed immunity deal with a top Clinton aide raises serious questions over
the handling of the FBI investigation.
The latest recipient of an immunity
deal from the Justice Department is one of Clinton’s closest aides and a figure
at the heart of the email scandal, Cheryl Mills. She joins two other central
figures in benefiting from such deals: former State Department staffer, Bryan
Pagliano and tech specialist Paul Combetta. In addition to at least two other
immunized witnesses according to the Associated Press, they represent the big
three of officials involved in the underlying allegations of Clinton’s
potential criminal conduct. Their collective immunization is baffling.
For the Obama Administration, the
criminal investigation into the Democratic presidential nominee and its prior
secretary of State came with a heightened level of public scrutiny and
skepticism. Many doubted that the administration would seriously pursue the
Clintons, a family of political royalty in both Democratic and establishment
circles. The easiest way for prosecutors to scuttle a criminal case is to
immunize those people who are at the greatest risk of criminal indictment.
Often prosecutors will avoid immunity deals in favor of offering plea bargains
to key players, tying their cooperation against others to reduced sentences.
Although a witness can lose an immunity deal by withholding evidence or lying,
a witness can undermine cases against superiors by tailoring their accounts or
memories to avoid statements showing intent or knowledge.
Before the disclosure of the Mills
immunity deal, the two prior deals were curious given the evidence against both
Pagliano and Combetta. Pagliano set up the notorious private server and later
joined Clinton at the State Department, where various people raised objections
to her use of unsecured communications. If Pagliano was problematic, Combetta’s
immunity deal was perplexing. Combetta used a product called BleachBit to
eradicate evidence of Clinton emails after a telephone conference with Clinton
staffers. When he used the product, he admitted that he knew that Congress had
issued a subpoena ordering the preservation of the evidence. Then, this month,
it was alleged by a “Twitter sleuth” that Combetta, acting under the alias
“stonetear,” solicited advice on how to change email records to remove a “VIP’s
(VERY VIP) email address.” Either Combetta did not disclose this effort in
violation of his immunity deal or the Justice Department effectively removed a
serious threat of indictment though the agreement. Despite immunity deals
pledging cooperation with all parts of the government, both Pagliano and
Combetta have refused to answer questions from Congress, and Pagliano is facing
a contempt sanction.
Mills is a participant in key emails
and features prominently in allegations of destroyed emails. She was alleged to
have been informed repeatedly of the dangers to national security, particularly
regarding Clinton’s use of a personal BlackBerry. She was also central in the
deletion of tens of thousands of emails that Clinton claimed were purely
personal and not work related.
Many of those emails are now known
to have discussed official issues and potentially embarrassing disclosures.
Mills’ role in the later investigations has also been controversial.
Surprisingly, defense attorney Beth Wilkinson agreed to jointly represent
various former aides, including not just Mills but Deputy Chief Jake Sullivan,
Mills’ deputy Heather Samuelson, and Clinton spokesman Philippe Reines.
Wilkinson is a very accomplished lawyer and there is no evidence of unethical
acts. However, attorneys rarely represent parties with potential conflicts of
interest and the agreement allowed for a single attorney to monitor the
consistency of aides in their accounts.
The joint representation of the
Clinton aides increased the chance for a uniform account in the controversy.
Making this even more concerning is that Mills was allowed by the FBI to sit in
on the interviews with Clinton, despite that fact that she was a key witness
herself in the investigation. Mills, who is a lawyer, did not hold a legal
position at the State Department and should have been excluded from the
interviews. Finally, Mills has continuing interests in the election of Hillary
Clinton, a development that would place her at the very top of the government.
Of all of the individuals who would
warrant immunity, most would view Mills as the very last on any list. If one
assumes that there may have been criminal conduct, it is equivalent to
immunizing H.R. Haldeman and John D. Ehrlichman in the investigation of
Watergate. Mills appears repeatedly at critical moments as one of the most
senior figures making decisions or monitoring events, including being informed
as Clinton chief of staff of the search for emails by the State Department in
response to a Freedom of Information demand in 2012 (three years before the
disclosure of Clinton’s use of a private email server). In such circumstances,
immunity can amount to impunity. Immunity does not remove the threat of
prosecution, but it certainly reduces that threat, while the value of defending
prior benefactors or loyalties can remain. Given the overlapping immunity
deals, many will now find it unsurprising that Comey did not find evidence of
“intentional misconduct or indications of disloyalty . . . or efforts to
obstruct justice.”
Comey removed the greatest threat
that could have been used to get two underlings to implicate senior officials,
and then gave immunity to the senior official most at risk of a charge. In the
land of the immunized, the degree of cooperation can sometimes be as difficult
to establish as the truth.
Jonathan Turley is the Shapiro
Professor of Public Interest Law at George Washington University and a member
of USA TODAY’s board of contributors.
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