RUTHFULLY YOURS

The FBI-302 report of the interview of Hillary Clinton, along with the other notes of investigation released today, make for mind boggling reading. Most bracing is the fact that Mrs. Clinton had her server wiped clean sometime between March 25 and 31, 2015, only three weeks after the New York Times on March 3 broke the story of the server system’s existence. David notes that, at the same time the Democrats’ Janus-faced presidential nominee was outwardly taking the position that she “want[ed] the public to see my email,” she was having her minions frantically purge her emails behind the scenes. I’d add that this was five months before she feigned ignorance when Fox News’s Ed Henry pressed her on whether she’d “tried to wipe the entire server … so there could be no email – no personal, no official.” Henry finally asked, “Did you wipe the server?”

Famously, Clinton scoffed, “Like with a cloth or something?” But we now know, as the FBI notes recount, she had the server purged with a sophisticated software program, BleachBit, which eventually made it extraordinarily difficult for the FBI to recover her emails, several thousand of which were successfully destroyed. And remember: We’ve just learned that 30 emails related to Benghazi were on the server Clinton purged – emails that she never turned over to the State Department despite claiming repeatedly that she’d surrendered all of her government-related emails. I would thus note that the March 2015 purge right after public revelation of the server’s existence occurred long after Mrs. Clinton was well aware of several official government investigations of the Benghazi massacre – one by the State Department, several by Congress, and a judicial proceeding involving the one defendant who has been indicted for the terrorist attack.

There were also, quite obviously, several relevant Freedom of Information Act (FOIA) litigations. From what I’ve been able to glean so far, it is not clear from the FBI’s notes (and it was certainly not clear from Director James Comey’s press conference and House testimony) whether any consideration was given to indicting Mrs. Clinton for obstruction of justice and of government investigations – and if not, why not. Among the most eye-popping claims Clinton made to the FBI was that she was unfamiliar with the markings on classified documents. Yes, you read that correctly: one of the highest ranking national security officials in the United States government – an official whose day-to-day responsibilities extensively involved classified information; who had secure facilities installed in her two homes (in addition to her office) so she could review classified information in them; and who acknowledged to the FBI that, as secretary of state, she was designated by the president as “an Original Classification Authority,” meaning she had the power to determine what information should be classified and at what level – had the audacity to tell the interviewing agents that she did not know what the different classification symbols in classified documents signified. For example, when asked about an email chain containing the symbol “(C)” – meaning “confidential,” a designation ubiquitous in classified documents – Clinton claimed not to know what it meant and, according to the notes, “could only speculate it was referencing paragraphs marked in alphabetical order.”

This is a response so absurd as to be insulting (the interview notes do not tell us if the FBI asked her to find (A), (B) and (D) notations that would be necessary to have the “alphabetical order” story make sense – assuming, for argument’s sake that one would indulge the possibility that this could be a truthful answer from a classified information consumer as high-level as Clinton). Mind you, Mrs. Clinton was not just secretary of state for four years. She was a United States senator for eight years, during nearly all of which she was assigned to the Senate Armed Services Committee (and such Armed Services components as the Subcommittee on Emerging Threats and Capabilities). Reviewing classified information, including highly sensitive national defense secrets, is a routine part of that committee’s work. Clinton also claimed that she “did not pay attention to the ‘level’ of classified information.” The interview notes do not explain how the FBI squared this with, for example, (a) Clinton’s acknowledgement that top-secret “special access program” (SAP) information was delivered to her by paper in her office and she knew it was supposed to be handled with extraordinary care; and (b) Clinton’s admission that she made use of her Original Classification Authority at times (though she couldn’t say how often). That means she had to have assigned to some information the very classification levels with which she portrays herself as scarcely familiar. We also learn in the FBI documents not only that Mrs. Clinton frequently lost her Blackberry devices, but that the FBI failed to account for some thirteen of them, most if not all of which she used while transmitting the over 2,000 classified emails the FBI identified. Clinton aides told the FBI that her devices – loaded with stored emails – would at times disappear and their whereabouts would become unknown. Interestingly, in the notes of Mrs. Clinton’s interview, the FBI says she told them that her BlackBerry devices would occasionally “malfunction”; when this happened, “[h]er aides would assist in obtaining a new BlackBerry.” I have not yet found indications that the FBI asked her about lost rather than malfunctioning devices. We do learn, though, that on February 9, 2016, the Justice Department asked Clinton’s lawyers to turn over all 13 mobile devices that the FBI identified as having potentially transmitted emails. Almost two weeks later, on February 22, the lawyers told the FBI “they were unable to locate any of these devices.” As a result, the notes recount, “the FBI was unable to acquire or forensically examine any of these 13 mobile devices.” Finally, something else about those lawyers. I nearly fell out of my chair upon reading the very first paragraph of the notes of Clinton’s interview, which identifies the lawyers for Clinton who were permitted to be present for the interview. Among them is Cheryl Mills, Clinton’s longtime confidant and chief-of-staff at the State Department. Readers may recall that I suggested back in May that “the fix” was in in the investigation of the Clinton emails. The reason was that the Justice Department was allowing Cheryl Mills – a witness, if not a subject, of the investigation – to invoke attorney-client privilege on behalf of Mrs. Clinton in order to thwart the FBI’s attempt to inquire into the procedure used to produce Clinton’s emails to the State Department. Mills was a participant in that procedure – and it is the procedure in which, we now know, well over 30,000 emails were attempted to be destroyed, including several thousand that contained government-related business. When she worked for Clinton at State, Mills was not acting in the capacity of a lawyer – not for then-Secretary Clinton and not for the State Department. Moreover, as Clinton’s chief-of-staff, Mills was intimately involved in issues related to Clinton’s private email set up, the discussions about getting her a secure BlackBerry similar to President Obama’s, and questions that were raised (including in FOIA requests) about Clinton’s communications. That is to say, Mills was an actor in the facts that were under criminal investigation by the FBI. Put aside that she was not Mrs. Clinton’s lawyer while working for the State Department; as I explained in the May column, Mills, after leaving the State Department, was barred by ethical rules from acting as Mrs. Clinton’s lawyer “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.” There is no way Mills should have been permitted to participate as a lawyer in the process of producing Clinton’s emails to the State Department nearly two years after they’d both left. I thought it was astonishing that the Justice Department indulged her attorney-client privilege claim, which frustrated the FBI’s ability to question her on a key aspect of the investigation. But it is simply unbelievable to find her turning up at Mrs. Clinton’s interview – participating in the capacity of a lawyer under circumstances where Clinton was being investigated over matters in which Mills participated as a non-lawyer government official. According to the FBI’s report, Mrs. Clinton had four other attorneys (one whose name is deleted from the report for some reason) representing her at the interview. She clearly did not need another lawyer. And it is Criminal Investigations 101 that law enforcement never interviews witnesses together – the point is to learn the truth, not provide witnesses/suspects with an opportunity to keep their story straight, which undermines the search for truth. Why on earth was Cheryl Mills permitted to sit in on Hillary Clinton’s FBI interview?

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