Thread: Why is Lynch rushing the search for classified e-mails but blocking the pay-to-play c

Why is Lynch rushing the search for classified e-mails but blocking the pay-to-play corruption probe?



by Andrew C. McCarthy November 1, 2016 8:15 PM

Why is Lynch rushing the search for classified e-mails but blocking the pay-to-play corruption probe?

The Wall Street Journal’s report that, for over a year, the FBI has been investigating the Clinton Foundation for potential financial crimes and influence peddling is, as Rich Lowry said Monday, a blockbuster. As I argued over the weekend, the manner in which the State Department was put in the service of the Foundation during Hillary Clinton’s tenure as secretary is shocking. It is suggestive of a pattern of pay-to-play bribery, the monetizing of political influence, fraud, and obstruction of justice that the Justice Department should be investigating as a possible RICO conspiracy under the federal anti-racketeering laws.

The Journal’s Devlin Barrett buries the Clinton Foundation lede in the 14th paragraph of his report. Even more astonishing are his final three paragraphs:

In September, agents on the foundation case asked to see the emails contained on nongovernment laptops that had been searched as part of the Clinton email case, but that request was rejected by prosecutors at the Eastern District of New York, in Brooklyn. Those emails were given to the FBI based on grants of partial immunity and limited-use agreements, meaning agents could only use them for the purpose of investigating possible mishandling of classified information.

Some FBI agents were dissatisfied with that answer, and asked for permission to make a similar request to federal prosecutors in Manhattan, according to people familiar with the matter. [FBI Deputy Director Andrew] McCabe, these people said, told them no and added that they couldn’t “go prosecutor-shopping.”

Not long after that discussion, FBI agents informed the bureau’s leaders about the Weiner laptop, prompting Mr. Comey’s disclosure to Congress and setting off the furor that promises to consume the final days of a tumultuous campaign.

Let me unpack this.

Readers are unlikely to know that the Eastern District of New York in Brooklyn is not just any United States attorney’s office. It is the office that was headed by Attorney General Loretta Lynch until President Obama elevated her to attorney general less than two years ago.

It was in the EDNY that Ms. Lynch first came to national prominence in 1999, when she was appointed U.S. attorney by President Bill Clinton — the husband of the main subject of the FBI’s investigations with whom Lynch furtively met in the back of a plane parked on an Arizona tarmac days before the announcement that Mrs. Clinton would not be indicted. Obama reappointed Lynch as the EDNY’s U.S. attorney in 2010. She was thus in charge of staffing that office for nearly six years before coming to Main Justice in Washington. That means the EDNY is full of attorneys Lynch hired and supervised.

When we learn that Clinton Foundation investigators are being denied access to patently relevant evidence by federal prosecutors in Brooklyn, those are the prosecutors — Loretta Lynch’s prosecutors — we are talking about.

Recall, moreover, that it was Lynch’s Justice Department that:

• refused to authorize use of the grand jury to further the Clinton e-mails investigation, thus depriving the FBI of the power to compel testimony and the production of evidence by subpoena;

• consulted closely with defense attorneys representing subjects of the investigation;

• permitted Cheryl Mills and Heather Samuelson — the subordinates deputized by Mrs. Clinton to sort through her e-mails and destroy thousands of them — to represent Clinton as attorneys, despite the fact that they were subjects of the same investigation and had been granted immunity from prosecution (to say nothing of the ethical and legal prohibitions against such an arrangement);

• drastically restricted the FBI’s questioning of Mills and other subjects of the investigation;

• and struck the outrageous deals that gave Mills and Samuelson immunity from prosecution in exchange for providing the FBI with the laptops on which they reviewed Clinton’s four years of e-mails. That arrangement was outrageous for three reasons: 1) Mills and Samuelson should have been compelled to produce the computers by grand-jury subpoena with no immunity agreement; 2) Lynch’s Justice Department drastically restricted the FBI’s authority to examine the computers; and 3) Lynch’s Justice Department agreed that the FBI would destroy the computers following its very limited examination.

As I have detailed, it was already clear that Lynch’s Justice Department was stunningly derelict in hamstringing the bureau’s e-mails investigation. But now that we know the FBI was simultaneously investigating the Clinton Foundation yet being denied access to the Clinton e-mails, the dereliction appears unconscionable.

It had to be screamingly obvious that the Clinton State Department e-mails, run through a server that also supported Clinton Foundation activities, would be critically important to any probe of the Foundation. Consider, for example, the issue of criminal intent, over which much has been made since Director Comey stressed the purported lack of intent proof in recommending against an indictment of Mrs. Clinton for mishandling classified information. RELATED: Comey Is Not the One Whose Unorthodox Actions Are Casting a Cloud over the Election

I believe, to the contrary, that there is abundant intent evidence. The law presumes that people intend the natural, foreseeable consequences of their actions: When you’re the secretary of state, and you systematically conduct your government business on private, non-secure e-mail rather than the government’s secure servers, you must know it is inevitable that classified information will be transmitted through and stored on the private server. Still, even though Clinton’s misconduct was thus willful and grossly negligent, no sensible person believes she was trying to harm the United States; the damage she did to national security was an easily foreseeable consequence of her scheme, but that damage was not what motivated her actions.

In such circumstances, it is a common tactic of defense lawyers to confound motive and criminal intent. Every criminal statute has an intent element (i.e., a requirement to prove that conduct was knowing, willful, intentional, or grossly negligent). Prosecutors, however, are virtually never required to prove motive. To be sure, they usually do introduce evidence of motive, because establishing a motive often helps to prove intent. But motive can sometimes confuse matters, so proving it is not mandatory.

A common, concrete example is helpful here: the guy who robs a bank because he is strapped for cash and his mom needs an operation. Although it was not the robber’s purpose to petrify the bank teller, proving that he had a desperate need for money helps demonstrate that his theft of money was quite intentional — not an accident or mistake. So even though we can all agree that our bank robber did not have a motive to do harm, his benign motive does not absolve him of guilt for the bank robbery he fully intended to commit. RELATED: Clinton Transmitted Classified Information to Her Lawyers

Yet, such absolution is exactly what Comey offered in claiming there was insufficient proof of criminal intent to charge Clinton with mishandling classified information. It was a rationale that echoed public comments by President Obama and Lynch’s Justice Department. They would have you believe that because Clinton was not motivated by a desire to harm national security she cannot have intended to violate the classified-information laws. It is sleight-of-hand, but it was good enough for Democrats and the media to pronounce Clinton “exonerated.”

Now, however, let’s consider the Clinton Foundation. While Clinton may not have been motivated to harm our national security, she was precisely motivated to conceal the corrupt interplay of the State Department and the Clinton Foundation. That was the real objective of the home-brew server system: Mrs. Clinton wanted to shield from Congress, the courts, and the public the degree to which she, Bill, and their confederates were cashing in on her awesome political influence as secretary of state. That is exactly why she did business outside the government system that captures all official e-mails; and, critically, it perfectly explains why she deleted and attempted to destroy 33,000 e-mails — risibly claiming they involved yoga routines, Chelsea’s wedding, and the like.

While knowing the purpose of the private server system may not advance our understanding of the classified-information offenses, it greatly advances our understanding of the scheme to make the Clinton Foundation a State Department pay-to-play vehicle. Consequently, the Clinton e-mails generated in the course of this scheme are apt to be highly probative of public-corruption offenses.

With that in mind, let’s go back to the Journal’s account of why Loretta Lynch’s EDNY prosecutors have blocked the FBI’s Clinton Foundation investigators from examining the Clinton e-mails found on the laptop computers of Cheryl Mills and Heather Samuelson: Those emails were given to the FBI based on grants of partial immunity and limited-use agreements, meaning agents could only use them for the purpose of investigating possible mishandling of classified information.

The Journal’s report says the FBI’s Clinton Foundation team was “dissatisfied” with this explanation — as well they should have been. The grants of immunity and limited-use agreements were disgraceful for the reasons outlined above. Significantly, however, the limitations imposed on the classified-information investigation should not, in the main, be binding on the Clinton Foundation investigation. Of course, the immunity grants to Mills and Samuelson must be honored even though they should never have been given in the first place. But those agreements only protect Mills and Samuelson. They would not prevent evidence found on the computers and retained by the FBI from being used against Hillary Clinton or any other possible conspirator.

Clearly, that is why agents on the FBI’s Clinton Foundation team wanted to get their investigation out of the EDNY’s clutches and move it to the U.S. attorney’s office in the Southern District of New York (my office for many years, as well as Jim Comey’s). The SDNY has a tradition of relative independence from the Justice Department and a well-earned reputation for pursuing political-corruption cases aggressively — a reputation burnished by U.S. attorney Preet Bharara’s prosecutions of prominent politicians from both parties. Alas, the Clinton Foundation agents were said to be barred from “prosecutor shopping” by FBI Deputy Director Andrew McCabe — the official whose wife’s Virginia state senate campaign was infused with $675,000 in cash and in-kind contributions by political committees controlled by Governor Terry McAuliffe, a notorious Clinton fixer and former Clinton Foundation board member.

Were it not for the Clinton Foundation,
there probably would not be a Clinton e-mail scandal.

Because of Democratic and media furor over Director Comey’s reopening of the Clinton e-mails investigation last week, the FBI is now under enormous pressure to review tens of thousands of e-mails stored on the laptop shared by Huma Abedin and Anthony Weiner. The point is to hound the bureau into announcing before Election Day (seven days from now) whether any new classified e-mails have been found. If none are found, this outcome will be spun as yet another “exoneration” of Hillary Clinton.

Here, however, is the real outrage: Beneath all this noise, Loretta Lynch’s Justice Department is blocking the FBI from examining Clinton e-mails in connection with its investigation of the Clinton Foundation — an investigation that is every bit as serious.

Were it not for the Clinton Foundation, there probably would not be a Clinton e-mail scandal. Mrs. Clinton’s home-brew communications system was designed to conceal the degree to which the State Department was put in the service of Foundation donors who transformed the “dead broke” Clintons into hundred-millionaires.

At this point, the reopened classified-information investigation is a distraction: Under the Comey/DOJ “insufficient intent evidence” rationale, there would be no charges even if previously undiscovered classified e-mails were found on the Abedin/Weiner computer. Instead, what is actually essential is that the FBI’s Clinton Foundation investigators get access to all the thousands of Clinton e-mails, including those recovered from the Mills and Samuelson laptops. The agents must also have the time they need to piece together all the Clinton e-mails (from whatever source), follow up leads, and make their case.

No one seems to notice that they are being thwarted. Hillary hasn’t even been elected, but already we are benumbed by Clinton Scandal Exhaustion Syndrome.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

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Clinton Transmitted Classified Information to Her Lawyers




by Andrew C. McCarthy October 26, 2016 1:11 PM

What was their security-clearance level

What was the legal rationale under which Hillary Clinton quite intentionally shared classified information with her lawyers, including David Kendall, Cheryl Mills, and Heather Samuelson?

As I outlined in last weekend’s column, we know that Clinton’s e-mails were replete with classified information. According to the FBI, the classified e-mails included intelligence graded at the most closely guarded level: eight top-secret e-mails, and seven designated as “special access program” (SAP) information. (While FBI director James Comey’s presentation understandably left this vague, the likelihood is that seven of the eight top-secret e-mails are SAP.) Under President Bill Clinton’s 1995 executive order, top-secret intelligence is information the mishandling of which “could be expected to cause exceptionally grave damage to the national security.” The SAP designation is added when the unauthorized disclosure of intelligence could compromise critical intelligence-gathering methods or imperil the lives of intelligence sources.

That is why access to this information is so tightly restricted, and its unauthorized disclosure is routinely prosecuted.

With that as our backdrop, let’s get two things straight.

First, there is no lawyer exception to the federal criminal law that prohibits the transmission of classified information to unauthorized persons. When the government gives an official a security clearance, that does not mean any lawyer whom the official retains derivatively has one, too. The laws that make it a felony to transmit classified information to a person not authorized to have it apply whether the official transmits such information to the technician who services her private e-mail server or to her lawyers.

Second, merely having a security clearance — even a top-secret security clearance — does not make a person an authorized recipient of all classified information. Dissemination of a great deal of government intelligence, particularly if it is designated as SAP, is restricted to those officials who have been read into the program because they have a government-certified need to know the information in order to perform their duties. RELATED: Why Hillary Clinton’s E-mail Scandal ‘Lawyers’ Are So Problematic

To take a prominent recent example, Paula Broadwell, General David Petraeus’s mistress, had a security clearance. This fact, however, was unavailing to Petraeus when he was prosecuted for disclosing his highly classified journals to her. Regardless of Broadwell’s holding of a security clearance, the transmission of the information to her was not authorized: She had not been read into the intelligence programs alluded to in the journals and did not have a certified need to know the information.

Well, on what basis did Clinton share top-secret, SAP information with her many lawyers?

It has been reported that Clinton’s principal defense lawyer, David Kendall, has a security clearance and that his firm, Williams and Connolly, has approved facilities for storing classified information, at least at some level of classification. If we assume (as I do) that these things are true, it would still have been illegal for Clinton to transmit top-secret, SAP intelligence to Kendall, and for that information to be stored at the firm. RELATED: Why Did the Obama Justice Department Grant Cheryl Mills Immunity?

I also assume (though I have no way of knowing) that, having served as chief of staff to the secretary of state and as a top policymaker at the State Department, Cheryl Mills had a very high-level security clearance from 2009 through 2012 and maintained some grade of security clearance (probably a high one) after she left Foggy Bottom on Clinton’s departure.

I also assume that Heather Samuelson had a security clearance and maintained it after leaving the State Department, even though she was a few rungs subordinate to Mills and not nearly as involved in policy matters. Even if these assumptions are correct, that alone would not have made Mills and Samuelson authorized recipients of top-secret, SAP information. In addition to sufficient security clearances, they would have needed to be read into those programs. The government would have to have certified their need to know. That seems unlikely.

Moreover, it certainly would not have been lawful to store such highly classified, restricted-access intelligence on Mills’s and Samuelson’s laptop computers — the ones the Justice Department and the FBI neglected to seize from them by subpoena or search warrant; the ones that Justice obtained in exchange for, astonishingly, a grant of immunity from prosecution and that it agreed the FBI would destroy.

Clinton knowingly and willfully transmitted the
classified e-mails stored on her server to her lawyers.

As I’ve previously recounted, FBI director Comey dismissed the significance of Mills’s and Samuelson’s possession of classified information on their laptops because the e-mails they were storing were merely duplicates of what was on Clinton’s private server. It is not enough to say this is no defense; it exemplifies exactly the danger that Congress was targeting in criminalizing the mishandling of classified information. If there is one unauthorized, non-secured copy of a document containing top-secret SAP intelligence, and then two additional copies are made, it becomes three times more likely that the information will be lost, unlawfully disclosed, or stolen by a foreign intelligence service.

That, by the way, is why federal law makes it a felony for people with security clearances to fail to report to the government their knowledge that classified information has been removed from its proper place of custody and has been transmitted or stored elsewhere without authorization. The FBI has revealed that fully 110 of Clinton’s e-mails were classified at the time they were sent or received — not just the eight top-secret (seven SAP) documents but, in addition, numerous documents classified as secret or confidential (as in “(C),” the symbol about which Clinton preposterously claimed ignorance when it showed up in her e-mails).

That, by the way, is why federal law makes it a felony for people with security clearances to fail to report to the government their knowledge that classified information has been removed from its proper place of custody and has been transmitted or stored elsewhere without authorization. The FBI has revealed that fully 110 of Clinton’s e-mails were classified at the time they were sent or received — not just the eight top-secret (seven SAP) documents but, in addition, numerous documents classified as secret or confidential (as in “(C),” the symbol about which Clinton preposterously claimed ignorance when it showed up in her e-mails).

All that aside, did Clinton, Mills, Samuelson, and Kendall, consistent with their obligations as security-clearance holders, immediately report to the government that they were in possession of classified information that had been removed from its proper place of storage? Recall that the Clinton team began the process of reviewing her e-mails in mid 2014, in anticipation of a formal State Department request that Clinton surrender all e-mails related to her tenure as secretary. So when did the Clinton lawyers report their possession of top-secret, SAP intelligence?

Moreover, rather than simply handing her homebrew server over to the State Department, Hillary Clinton knowingly and willfully transmitted the classified e-mails stored on her server to her lawyers. So, were those lawyers authorized to receive top-secret, SAP information?

If they were not, why hasn’t Mrs. Clinton been indicted?

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.

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Why Did the Obama Justice Department Grant Cheryl Mills Immunity?


by Andrew C. McCarthy September 24, 2016 12:26 PM

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 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.

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