The fix

Andrew McCarthy reports at National Review that Obama’s Justice Department shielded Cheryl Mills from FBI questions.

There was an extraordinary report in Tuesday’s Washington Post about the Clinton e-mail investigation. It involved the government’s interview of longtime Clinton consigliere Cheryl Mills. It details how Justice Department attorneys made an agreement with Mills’s attorney to cut off questioning about a key aspect of the case.

Mills, who is a lawyer, was represented at the interview by a lawyer named Beth Wilkinson. As is customary in these situations, the questioning was conducted jointly by FBI agents and Justice Department prosecutors. Yet when things got dicey, it seems the Justice Department prosecutors worked jointly with Ms. Wilkinson to block the FBI from asking about Mills’s collusion with Clinton in the belated provision of thousands of Clinton’s e-mails to State — provided only after nearly 32,000 of those e-mails were deleted.

...The first remarkable thing to note is that there is a press report at all. This is supposed to have been a law-enforcement interview in a criminal investigation. Those are supposed to be non-public, much like grand-jury proceedings.

...the Post can only have gotten the information published in its report from leaks by the Justice Department. Indeed, Mr. Zapotosky writes that goings-on in the Mills interview were described to the Post “by several people, including U.S. law enforcement officials, who spoke on condition of anonymity because the investigation is ongoing and those involved could face professional consequences for discussing it publicly.”

Isn’t that special? The “U.S. law enforcement officials” know it is unethical for them to be speaking about what happened in an investigative interview. Do they resolve this ethical “dilemma” by ethically refraining from comment? No, they unethically leak to the press in cowardly anonymity — your government at work.

...The other preliminary matter worth noting here is that the Post is completely in the tank for Mrs. Clinton and her minions. So what are we to make of the fact that the Obama Justice Department chose the Post to funnel its leak to?

...The report advises us that “so far, investigators have found scant evidence tying Clinton to criminal wrongdoing” — and how would the Post know that? In the middle of the report, moreover, readers are invited — in blue italics — to check out another report entitled, “Officials: Scant evidence that Clinton had malicious intent in handling of e-mails.” Sounds great for her . . . especially since they conveniently fail to tell you that “malicious intent” is not required to prove felonious mishandling of classified information. In fact, gross negligence would do, so if there really is even “scant” evidence of malicious intent, that suggests it would be fairly easy to prove the crime.

Details, details. In any event, the upshot of the Post’s patent partisanship is that we do not learn key details that paper is no doubt in a position to tell us (especially since the article makes clear that Ms. Wilkinson, Mills’s lawyer, is also a very willing source). For example, did Mills get immunity?

The report states that “investigators consider Mills . . . to be a cooperative witness.” Again, the Post can know that only if its Justice Department sources are telling it so. But more to the point, as I’ve previously laid out in some detail, there are all kinds of “cooperative witnesses.” Some, for example, are mere innocent observers who have nothing to do with potentially criminal activity and unconditionally cooperate with law enforcement because they are not suspects. Others may be accomplices in the potentially criminal activity; they generally cooperate only if promised immunity, or at least a reduction of criminal charges.

...So was Mills given at least qualified immunity in exchange for answering the FBI’s questions? The Post doesn’t tell us.

...In December 2014, under pressure from public and congressional demands for information, the State Department finally requested that Clinton surrender any government records she may have kept when she left. Only then did Clinton acknowledge the homebrew server system on which 62,320 e-mails were said to be stored. Of these, only 30,490 were turned over to the State Department — in a paper form that was impossible to search digitally, forcing the Department to expend mammoth resources and taxpayer dollars to scan them into its filing system. Clinton then unilaterally deemed the remaining 31,830 e-mails “private, personal records” — which she undertook to destroy by deleting them, despite their having been significant enough to preserve up until that point.

Destroying government files is a felony, every bit as much as is mishandling classified information. (See my column discussing federal embezzlement statute and Shannen Coffin’s column discussing federal concealment and destruction statute.) Moreover, if those 31,830 e-mails contained information responsive to FOIA requests, congressional investigations (e.g., probes of Benghazi and the State Department’s abuse of FOIA), or due-process discovery rules governing judicial proceedings (e.g., the Khatallah case involving the Benghazi massacre), attempting to destroy them by deleting them could amount to felony obstruction of judicial or other governmental proceedings.

Before Clinton tried to destroy those thousands of e-mails (some or all of which the FBI may since have been able to retrieve from the server), it was her duty to review them with the State Department to assure its concurrence that they were indeed private. For now, we have only the dubious say-so of Clinton and her confederates. The FBI and the rest of us are expected to believe one of the highest-ranking, busiest officials in the United States government had time for 31,830 e-mails about yoga routines, wedding gowns, and the like.

How can it be possible that the FBI is not being permitted by the Justice Department to ask a key witness — an accomplice witness — about one of the central transactions under investigation?

Read more here.