RUTHFULLY YOURS

With concerns about Hillary Clinton’s health intensifying, Congress is poised to revisit the FBI’s investigation of her e-mail scandal. As the Washington Examiner’s Byron York reports, the House Government Oversight Committee chaired by Jason Chaffetz (R., Utah) will begin hearings this week.

The committee is especially troubled by the facts that (a) unbeknownst to Congress, the Justice Department gave immunity to a key witness; yet, (b) prosecutors and the FBI indulged that witness’s refusal to answer critical questions. Specifically, Paul Combetta, a technician at Platte River Networks (the Colorado firm retained by the Clintons to handle the private e-mail system), is the person who destroyed Clinton’s e-mails despite the fact that they were under congressional subpoena. Nevertheless, he was permitted to invoke attorney-client privilege — not his own, mind you, but Mrs. Clinton’s – in declining to discuss any instructions he received before (and after) carrying out the mass deletion of tens of thousands of Clinton e-mails, a task for which he used the “BleachBit” program in an effort to ensure that the deleted e-mails would be irretrievably lost.

For months, in the course of pointing out that only the Justice Department, not the FBI, has authority to confer immunity on witnesses, I have been raising questions about (a) who in the investigation has been given immunity, and (b) exactly what kind of immunity — statutory? transactional? conditional? I have also tried to highlight the dubious basis (to be charitable) for claiming attorney-client privilege. These remain important issues, and it’s good that the committee plans to probe them.

I also hope, though, that the committee will investigate a more fundamental matter: Why was Hillary Clinton so willing to speak with the FBI?

Why were her aides, deeply implicated in Clinton’s conduct, so willing to submit to FBI interviews? Even Cheryl Mills, who reportedly had refused to cooperate in a State Department inspector-general investigation of the Clinton e-mail system’s undermining of federal law, was entirely comfortable answering the FBI’s questions — at least to the extent the Obama Justice Department allowed questions to be asked.

Mrs. Clinton, Cheryl Mills, and other members of the Clinton inner circle knew about the unauthorized e-mail set-up and its inevitable flouting of government classified-information, recordkeeping, and public-disclosure laws. They took actions that exposed them, at least theoretically, to the very real potential of criminal prosecution. Yet, they all appear to have spoken voluntarily with the FBI.

This virtually never happens in a federal criminal investigation.

In the vast majority of such investigations, the FBI and the Justice Department are clearly trying to make the case. Prosecutors and agents generally won’t waste time investigating conduct that is neither criminal nor serious enough to merit prosecution. Normally, if the top federal law-enforcement agencies pour prodigious amounts of time and resources into a case, it is because they fully intend to prosecute.

There is something disturbingly not normal about the Clinton-e-mails investigation.

Still, there is one investigative norm that was clearly followed: The lawyers representing the subjects end up being nearly as well-informed as the investigators themselves. Crucially, that includes being up to speed on the government’s assessment of the case.

That is only natural. Lawyers for people implicated in a criminal inquiry cannot do their jobs effectively unless they get a careful read on what the prosecutors and agents are thinking. They need to know, for example, whether their clients are regarded as (a) mere witnesses (i.e., people who happen to have seen or heard something relevant but are not suspected of wrongdoing), (b) investigative subjects (i.e., people whose conduct is under review to determine whether charges should be filed against them), or (c) targets (people who are almost certain to be indicted). Only by knowing this — only by analyzing how likely it is that the client will be charged with a crime — can the lawyer competently determine whether it is in the client’s interest to be cooperative with the prosecutors, to try to cut a deal, or to fight to the bitter end.

If the subject of an investigation has an inkling that charges are likely, there is very little upside in submitting to an interview by the FBI and the Justice Department, unless it is to negotiate a guilty plea or some form of immunity in exchange for information that the government can use to prosecute other suspects.

Of course, there are no hard-and-fast rules here — investigations are too fact-specific for that (which is why, again, it is so important for a defense lawyer to grasp the prosecutor’s assessment of the case). Sure, there is the one-in-a-million client who is so extraordinarily persuasive that his lawyer may believe he can charm experienced investigators in an interview, maybe get them to rethink their intention to indict. Outside of that rare situation, though, if a lawyer thinks there is a decent chance the client could be charged, and the client has no interest in pleading guilty, the lawyer will not allow the investigators to interview the client. There is nothing to be gained from it.

When, as is usual, the prosecutors and agents signal that they have a case they fully intend to charge, the lawyer and his client bide their time. In that situation, there is more advantage in declining to cooperate. Why help them if you know they are coming for you? It is better to stay silent and wait to see what the prosecution has: what the indictment alleges, who the witnesses are, what the evidence produced in discovery shows, and whether the case has legal or factual flaws to exploit. After all, it is not as if plea negotiations end when an indictment gets filed; often, that’s when they get started. But there is tactical advantage in withholding cooperation until the post-indictment stage: The lawyer can negotiate with eyes open about exactly what the government thinks it can prove. If the government still wants an interview as part of the plea negotiations, there is much less risk that the client will dig a deeper hole for himself once his lawyer has walked him through the indictment and the evidence.

Things are very different, however, when lawyers are convinced there is no prospect of an indictment. That is especially true in an investigation involving politicians, who have a great interest in projecting the appearance of cooperation to the public.

The subjects in the Clinton e-mail investigation seem to have exuded confidence that they were never in any real jeopardy. As I noted back in May, “U.S. officials familiar with the matter” were leaking to the Washington Post that “investigators [had] found scant evidence tying Clinton to criminal wrongdoing.” Really? What were the investigators thinking? According to the Post, they concluded that there was “scant evidence that Clinton had malicious intent in [the] handling of e-mails” (my italics).

As I countered at the time, this was ominous for those hoping to see justice done. Proof of “malicious intent” is not required to establish the felony offense of mishandling classified information. But – wouldn’t you know it! — what the Post was reporting back in May as the considered analysis of its unnamed Justice Department sources turned out to be exactly the rationale touted by the FBI in July as justification for not charging Clinton.

Not just that. The Post said in May that its leaking sources described Cheryl Mills as a cooperative witness — notwithstanding her aforementioned refusal to cooperate with the State Department’s inspector general, her numerous refusals to answer questions when deposed pursuant to court order by Judicial Watch, and her refusal (with the backing of the Justice Department, as recounted by the Post) to answer the FBI’s questions about the process by which she and others decided which Clinton e-mails to surrender to the government and which to destroy.

There is no doubt that Ms. Mills, who was Secretary Clinton’s chief of staff at the State Department, was up to her eyeballs in the conduct the FBI was investigating — conduct as to which evidence of wrongdoing was so “scant” it took the FBI 42 heavily redacted pages to summarize it. And, as the Wall Street Journal’s editors point out, Mills’s denial to the FBI that she knew of Clinton’s private server during her State Department tenure appears to be contradicted by other evidence in the FBI’s own report, not least: Mills’s explicit discussion of the server in a 2010 e-mail exchange with Huma Abedin, another high-ranking Clinton staffer who later told the FBI she did not know about the server at that time.

Still, as some New York Democratic senator once said, let’s engage in “a willing suspension of disbelief.”

Let’s assume, for fantasy’s sake, that Mills is as pure as the driven snow. That does not change the well-known fact that a private lawyer who has been a government official may not ethically provide legal services in connection with a matter in which the lawyer was involved while working for the government. Nor does it change the even better known fact that the FBI and federal prosecutors, if they are serious about prosecuting a case, do not allow suspects – or even mere witnesses — to sit in on each other’s interviews. Doing so discredits the investigation, making it appear the government is trying to cobble together a story rather than get at the truth.

So let’s pretend that Bill Clinton’s “coincidental” meeting with Attorney General Loretta Lynch on the Arizona tarmac just a few days before the investigation was closed never happened — we’re suspending disbelief here, right? If Hillary Clinton knew that the FBI regarded her co-conspirator, Cheryl Mills, as a cooperative witness rather than a suspect who might very well be charged, why would Mrs. Clinton and her lawyers think she (Clinton) was in any potential jeopardy?

And putting even that aside, once Mrs. Clinton saw that the FBI and the Justice Department had no problem with Mills’s accompanying Clinton into the conference room for the latter’s interview, didn’t Mrs. Clinton have to know there was no conceivable way she was going to be charged, no matter how insultingly ludicrous were her answers to the agents’ questions?

There are certain unmistakable signals investigators send when they are trying to make a case. Plainly, there are also certain signals they send when they are trying not to make a case. Was there ever a time when the Justice Department and the FBI conveyed to lawyers for Mrs. Clinton and her inner circle that there was a serious possibility that they could be charged?

I’m betting the answer is no, and that that explains why Clinton & Co. were so willing to speak with the FBI — and why their lawyers (astonishingly including Ms. Mills) were so willing to let it happen. They understood there was no real jeopardy: The Justice Department would abide the most outlandish legal theories if that’s what it took to avoid filing charges.

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