By Kimberley A. Strassel
Sept. 29, 2016 7:28 p.m. ET
Two revealing, if largely unnoticed, moments came in the middle of FBI Director Jim Comey’s Wednesday testimony before the House Judiciary Committee. When combined, these moments prove that Mr. Comey gave Hillary Clinton a pass.
Congress hauled Mr. Comey in to account for the explosive revelation that the government granted immunity to Clinton staffers Cheryl Mills and Heather Samuelson as part of its investigation into whether Mrs. Clinton had mishandled classified information. Rep. Tom Marino (R., Pa.), who was once a Justice Department prosecutor and knows how these investigations roll, provided the first moment. He asked Mr. Comey why Ms. Mills was so courteously offered immunity in return for her laptop—a laptop that Mr. Comey admitted investigators were very keen to obtain. Why not simply impanel a grand jury, get a subpoena, and seize the evidence?
Mr. Comey’s answer was enlightening: “It’s a reasonable question. . . . Any time you are talking about the prospect of subpoenaing a computer from a lawyer—that involves the lawyer’s practice of law—you know you are getting into a big megillah.” Pressed further, he added: “In general, you can often do things faster with informal agreements, especially when you are interacting with lawyers.”
The key words: “The lawyer’s practice of law.” What Mr. Comey was referencing here is attorney-client privilege. Ms. Mills was able to extract an immunity deal, avoid answering questions, and sit in on Mrs. Clinton’s FBI interview because she has positioned herself as Hillary’s personal lawyer. Ms. Mills could therefore claim that any conversations or interactions she had with Mrs. Clinton about the private server were protected by attorney-client privilege.
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Only here’s the rub: When Ms. Mills worked at the State Department she was not acting as Mrs. Clinton’s personal lawyer. She was the secretary's chief of staff. Any interaction with Mrs. Clinton about her server, or any evidence from that time, should have been fair game for the FBI and the Justice Department.
Ms. Mills was allowed to get away with this “attorney-client privilege” nonsense only because she claimed that she did not know about Mrs. Clinton’s server until after they had both left the State Department. Ergo, no questions about the server.
The FBI has deliberately chosen to accept this lie. The notes of its interview with Ms. Mills credulously states: “Mills did not learn Clinton was using a private email server until after Clinton’s tenure” at State. It added: “Mills stated she was not even sure she knew what a server was at the time.”
Which brings us to the hearing’s second revealing moment. Rep. Jason Chaffetz (R., Utah) pointed out that the FBI’s notes from its interview with Clinton IT staffer Bryan Pagliano expose this lie. In late 2009 or early 2010, Mr. Pagliano told investigators, he approached Ms. Mills to relay State Department concerns that the private server might pose a “federal records retention issue.” According to Mr. Pagliano, Ms. Mills told him not to worry about it, because other secretaries of state had used similar setups.
More damning, Mr. Chaffetz held up an email that Ms. Mills sent in 2010 to Justin Cooper, whom the Clintons personally employed to help maintain the server. The email reads: “hrc email coming back—is server okay?” Mr. Cooper responds: “Ur funny. We are on the same server.”
To be clear: When Mrs. Clinton had an email problem, Ms. Mills didn’t call the State Department’s help desk. She didn’t call Yahoo customer service. She called a privately employed Clinton aide and asked specifically about Mrs. Clinton’s “server.” She did this as chief of staff at the State Department. Mr. Chaffetz asked Mr. Comey why the FBI wrote that Ms. Mills was ignorant about the server until later.
Mr. Comey suddenly sounded like a man with something to hide. “I don’t remember exactly, sitting here,” he said, in what can only be called the FBI version of “I don’t recall.” He then mumbled that “Having done many investigations myself, there’s always conflicting recollections of facts, some of which are central, some of which are peripheral. I don’t remember, sitting here, about that one.”
Really? Only a few minutes before he had explained that the Justice Department was forced to issue immunity to Ms. Mills because she had asserted attorney-client privilege. Yet he couldn’t remember all the glaring evidence proving she had no such privilege? Usually, the FBI takes a dim view of witnesses who lie. Had the FBI pursued perjury charges against Ms. Mills—as it would have done against anyone else—it would have had extraordinary leverage to force her to speak about all of her communications regarding the server. It might have even threatened to build a case that Ms. Mills was part of a criminal scheme. Then it could have offered immunity in return for the real goods on Hillary.
But going that route would have required grand juries, subpoenas, warrants and indictments—all things that Mr. Comey clearly wanted to avoid in this politically sensitive investigation. Much easier to turn a blind eye to Ms. Mills’s fiction. And to therefore give Mrs. Clinton a pass.
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