By Andrew C McCarthy ~
Well, what would Friday be without the latest document dump from the Clinton email investigation? Yesterday afternoon, with the public in distracted anticipation of the coming weekend and Monday’s Clinton-Trump debate showdown, the FBI released another 189 pages of interview reports.
Along with this document dump comes remarkable news: The Obama Justice Department reportedly gave top Clinton aide and confidant Cheryl Mills immunity from prosecution for any incriminating information located on her personal computer.
According to House Oversight Committee Chairman Jason Chaffetz (R., Utah), the limited immunity was granted in order to persuade Ms. Mills (pictured) to surrender her laptop computer so the FBI could check whether classified information was stored on it.
This is very strange. There was no need to grant concessions to Mills. The Justice Department could have required the production of the computer by simply issuing a grand jury subpoena. And had there been any concern that Mills would not cooperate, would destroy the computer, or would “misplace” it (as Team Clinton claims to have misplaced so many Hillary devices), investigators could have applied for a search warrant and seized the computer.
In normal cases, the Justice Department does not grant immunity in exchange for evidence when it has lawful power to compel production of that evidence.
Mills is not alone. Apparently her subordinate, longtime Clinton aide Heather Samuelson, was given the same deal.
Unbelievably, Mills and Samuelson, who are lawyers, were also permitted to represent Hillary Clinton in the very same investigation in which, we now learn, they were personally granted immunity from prosecution. That’s apart from the fact that both of them were involved as government officials at the time they engaged in some of the conduct under investigation – a circumstance that, by itself, should have disqualified them from later serving as lawyers for other subjects in the same the investigation.
As readers may recall, I have been trying to draw attention to questions about immunity in the Clinton emails investigation since last spring (see here and here). That was when we first learned that some form of immunity had been given to Brian Pagliano. He is the Clinton family employee who serviced then-Secretary Clinton’s unauthorized private server and, astonishingly, later drew a large State Department salary while continuing to be paid on the side by the Clintons.
As I explained at the time, it seemed highly likely that Ms. Mills, too, had been granted some form of immunity before agreeing to speak with the FBI. After all, she was a key player in events regarding which the FBI was conducting a criminal investigation, and she had previously declined to be interviewed by the State Department’s inspector general. In addition, we now know that, on advice of counsel, she refused to answer many questions when deposed by Judicial Watch regarding the email scandal. We can thus surmise that Mills had concerns about criminal jeopardy. We also know that her lawyer, Beth Wilkinson, aggressively – and successfully – lobbied the Justice Department to prevent the FBI from questioning Mills about topics of great significance to the investigation. Based on all this, it would be very surprising to me if Mills had not been given a “proffer agreement” form of immunity before agreeing to an FBI interview. (As I’ve outlined in columns linked above, in a proffer agreement, known in prosecutor jargon as the “queen for a day” arrangement, the Justice Department agrees – with some caveats – not to use against the person any statements made during the interview).
To this point, we still do not have a clear picture of whether Mills was given any kind of immunity in exchange for agreeing to an FBI interview. We have now learned, however, that she did not surrender her private laptop computer until she received assurance – in the form of immunity – that she would not be prosecuted if the FBI found any incriminating information on it. (Ms. Wilkinson, told the Associated Press that Mills got immunity only for the computer, not for the FBI interview … but Wilkinson refused to show the immunity agreement to the AP.)
Mills’ subordinate, Heather Samuelson, who is also represented by Wilkinson, reportedly got the same immunity deal as Mills.
The FBI had abundant reason to suspect that there was classified information improperly stored – i.e., potentially illegally stored – on Mills and Samuelson’s computers. These devices had been used in 2014 (i.e., about two years after Mills and Clinton had left the State Department) in the process of reviewing the 62,000 emails stored on Clinton’s homebrew server. It was by this process that Clinton determined which emails related to government business and would be surrendered to the State Department, and which were (purportedly) private and would be retained by Clinton. (We now know that thousands of what Clinton claimed were “private” emails were actually government-related, that some even contained classified information, and that Clinton and her minions attempted to destroy all of them – notwithstanding that destroying even one government file is a felony.)
Because thousands of emails containing classified information were included among the 62,000 reviewed on the Mills and Samuelson computers, and because data usually remain stored in the memory of a computer even if a deletion attempt has been made, it was a good bet that the Mills and Samuelson computers contained classified information.
It can be a felony to mishandle classified information by transmitting it to, or storing it on, an unclassified system. Moreover, it constitutes a threat to national security (and to informants who risk their lives to acquire intelligence for the United States) to leave classified information on a non-secure private computer that can easily be hacked or otherwise infiltrated. Consequently, the Justice Department had the power and the duty to take custody of the Mills and Samuelson computers.
It does not matter whether Mills and Samuelson were concerned that their computers might contain incriminating information. The Fifth Amendment privilege against self-incrimination only protects a person from being forced to provide the government with self-incriminating information of a testimonial nature; it does not cover physical evidence.
Thus, when law-enforcement has reason to believe physical evidence could be relevant to a criminal or national-security investigation, it demands the production of that evidence. There is no need to bargain with the person in possession of such evidence by offering immunity from prosecution. Instead, the Justice Department simply issues a grand jury subpoena compelling the possessor to surrender the evidence, on pain of being jailed for contempt if she fails to comply. Further, if investigators fear that the possessor might destroy or tamper with the evidence rather than honor a subpoena, the prosecutor simply obtains a judicial search warrant, enabling the FBI to seize the evidence forcibly.
In a normal case, immunity-from-prosecution never enters into this equation. Immunity is a valuable concession that the Justice Department is only supposed to grant if there is no other way to get the evidence in question. Investigators are not supposed to “pay” for evidence the law empowers them to obtain cost-free. If, for example, a prosecutor surmised that a suspect’s hair might match hair recovered at the scene of a robbery, the prosecutor would not offer the suspect immunity from prosecution for the robbery in exchange for the suspect’s provision of a hair sample. The prosecutor would issue a subpoena requiring the suspect to provide the grand jury with a hair sample; if there was a match, the grand jury would then indict the suspect for the robbery.
As the Associated Press puts it: “By including the emails recovered from the laptops in the immunity agreements, the Justice Department exempted key physical evidence from any potential criminal case against [Hillary Clinton’s] aides.” It makes no sense to have done this … unless the Justice Department had already decided it would not prosecute Mills and Samuelson, no matter what the proof showed.
Add this to an already long list of startling concessions made to Mrs. Clinton and her confederates. The latest revelations raise other new questions that I will deal with in subsequent posts. For now, suffice it to say, yet again: It appears the Obama Justice Department’s goal was not to make a prosecutable case, but to make it appear that Hillary Clinton was “exonerated” after a thorough FBI investigation.
A version of this piece also appeared on National Review Online.
FamilySecurityMatters.org Contributor Andrew C. McCarthy is a senior fellow at the National Review Institute, author of Willful Blindness: A Memoir of the Jihad and blogs at National Review Online’s The Corner.