RUTHFULLY YOURS

Just when you think it can’t get any worse . . .

According to House Judiciary Committee chairman Bob Goodlatte (R., Va.), the immunity agreements struck by the Justice Department with Cheryl Mills and Heather Samuelson, two top subjects of the FBI’s Clinton e-mail investigation, included “side agreements.” Pursuant to these side agreements, it was stipulated that (a) the FBI would not scrutinize any documents dated after January 31, 2015 (i.e., about five weeks before the most disturbing actions suggestive of obstruction of justice occurred); and (b) the FBI — in an investigation critically involving destruction of documents — would destroy the computers after conducting its search.

These revelations are outlined in a letter Chairman Goodlatte penned yesterday to Attorney General Loretta Lynch. Goodlatte says his committee learned of the side deals upon reviewing the immunity agreements, which have not been made public. That review naturally prompted a demand by the committee to see the side deals, which — for reasons unexplained — the Justice Department elected not to provide when it gave the committee access to the immunity agreements. The side deals have also not been made public.

For anyone who worked in the Justice Department for any length of time, the striking of side deals with a defense lawyer (in this instance, Beth Wilkinson, who represents both Ms. Mills and Ms. Samuelson) is bracing. Written agreements with the Justice Department (regarding, for example, guilty pleas and cooperation) customarily include a clause explaining that the four corners of the document contain the entirety of the understandings between the parties. This is done precisely because defendants often claim they were enticed into signing the agreement because of this or that side deal purportedly agreed to by the government. The Justice Department likes to be able to say, “We don’t engage in those sorts of shenanigans. The agreement is the single agreement as written.” Why did the Justice Department make side deals in this case (which we’ve been told was treated like any other case . . . except, alas, when it wasn’t)?

More fundamentally, as I’ve been arguing since we learned of the immunity agreements, why did the government grant immunity in the first place? Unfortunately, the question, at this point, is rhetorical. Immunity was granted because the Justice Department would not use the grand jury against Mrs. Clinton.

RELATED: The FBI’s Defense of How the Clinton Interview Was Conducted Is Full of Holes

As I’ve explained, the computers were physical evidence. The law empowers the government to compel production of physical evidence by subpoena (or by search warrant if there is suspicion that the evidence will be tampered with or destroyed). Importantly, however, the power to compel production of evidence derives from the grand jury. In the Clinton e-mails case, unlike virtually every other criminal case, the Justice Department apparently declined to convert the FBI’s investigation into a grand-jury investigation. This meant grand-jury subpoenas would not be issued.

Why?

Patently, the highly politicized Obama Justice Department did this because commencing a grand-jury investigation suggests that a matter is very serious and an indictment (which only the grand jury can issue) is likely. In this case, the Justice Department was determined to maintain the illusion that Clinton and her underlings hadn’t committed crimes, so the grand jury was avoided. That is how you end up with such inanities as the Justice Department’s leaking to the Washington Post that Cheryl Mills was regarded as nothing more than a very cooperative witness, not a suspect, even though we now know that (a) Mills falsely denied that, while serving as then-secretary of state Clinton’s chief of staff, she knew about the homebrew server system; (b) the evidence indicates that Mills is the one who directed Platte River Networks (PRN) to destroy the e-mails stored on Clinton’s server (although there are salient questions about when this happened); (c) the private laptop Mills used to vet Clinton’s e-mails contained mounds of classified information; and (d) Mills was sufficiently worried that her lawyer sought — and obtained — immunity from prosecution before Mills surrendered her computer to the FBI.

In his House testimony last week, FBI director James Comey tried to deflect the government’s failure to use the grand jury by rationalizing that the FBI was very anxious to examine the Mills and Samuelson computers, and that it is often more efficient in a criminal investigation to make informal agreements with the subjects’ lawyers than to rely on grand-jury compulsion. As I countered in this past weekend’s column, this claim is unconvincing. Use of the grand jury and negotiations with defense lawyers are not mutually exclusive. They happen concurrently all the time. Indeed, it is fear that the government might resort to compulsion that induces defense lawyers to negotiate reasonably. Take the grand jury off the table and investigators are apt to get taken to the cleaners.

That is what happened here. With no resort to the grand jury, the FBI was reduced to relying on the Justice Department, which was working closely with Team Clinton’s defense lawyers, to cut immunity deals. These deals gave away the store in exchange for physical evidence the government actually had the power to demand without making concessions, much less extraordinary concessions like immunizing Mills and Samuelson from any prosecution based on the contents of the computers.

According to Goodlatte, those concessions were even more astonishing than they seemed at first blush because of the newly revealed side deals.

The more we learn about the Justice Department’s investigation of Hillary Clinton’s private email, the worse it looks. The latest revelation is that, along with granting immunity to two Clinton aides, Justice agreed to secret side deals that provided highly unusual protections from potential prosecution.

The side agreements came to light this week in a letter from House Judiciary Chairman Bob Goodlatte to Attorney General Loretta Lynch. Mr. Goodlatte says he learned about the side deals by examining the immunity agreements, which haven’t been released to the public.

We already knew that Justice offered immunity to at least five central figures in the private email probe, including Cheryl Mills and Heather Samuelson, the aides in charge of deciding which of the former Secretary of State’s emails on her private server would be turned over to the State Department. FBI Director James Comey struggled to explain to Congress last week why immunity was necessary to obtain the laptops the two had used for sorting the emails.

Now we learn that Ms. Mills and Ms. Samuelson also obtained guarantees that investigators would not search these laptops after Jan. 31, 2015. More amazing, Justice agreed to destroy both laptops after examining them. Think about that: Before the authorities knew what was on the laptops, they agreed to destroy potential evidence in their investigation. The evidence was also under a congressional subpoena and preservation order.

The “no-look” date beyond Jan. 31, 2015 means the FBI couldn’t see what the two aides said or did after the news of Mrs. Clinton’s private server became public in March 2015. Investigators would be unable to determine if Ms. Mills or Ms. Samuelson had engaged, as Mr. Goodlatte put it in his letter, in “destruction of evidence or obstruction of justice related to Secretary Clinton’s unauthorized use of a private email server.” Why else would time limits be necessary given that the two women already had immunity?

We’re told by prosecutors that this kind of special treatment is all but unheard of. Justice would typically empanel a grand jury, which would issue subpoenas to obtain physical evidence like the laptops. No grant of immunity would have been necessary.

So why no grand jury? Mr. Comey told Congress last week that the FBI was eager to see the laptop evidence and that it is sometimes easier to have informal agreements to obtain it. But surely it’s possible to negotiate with lawyers and conduct a grand jury at the same time. Without the threat of a grand jury the Clinton entourage had all the leverage, and they were able to get away with what amounted to formal get-out-of-jail-free cards. CONTINUE AT SITE

Tim Kaine repeatedly defended Hillary Clinton’s use of a private email server during Tuesday night’s vice-presidential debate. “The FBI did an investigation,” he said at one point, “and they concluded that there was no reasonable prosecutor who would take it further.” But such a statement is credible only if it follows a real criminal investigation—that is, the sort of investigation that the FBI and the Justice Department conduct when they actually care about a case and want convictions.

We know all too well what that kind of investigation looks like, as two of the lawyers who defended a recent target: former Virginia Gov. Bob McDonnell. That story had a happy ending for the governor and his wife. The Supreme Court unanimously ruled in their favor this summer and all charges were dropped in September. But their victory certainly wasn’t due to lack of investigatory zeal on the part of the FBI and Justice Department.

Below are only a few of the heavy-handed tactics federal investigators used to build their case against the McDonnells. See how they compare to how Mrs. Clinton was treated.

Conduct ambush interviews. The first contact between law enforcement and the McDonnells was an ambush interview of the governor’s wife. The agents lied to her about the topic of the meeting, forbade Gov. McDonnell’s staff from attending, and then grilled her on their suspicions about potential public corruption. Statements from that interview later took center stage in the trial of her and her husband.

In Mrs. Clinton’s case, no ambush interviews were conducted, and witnesses were generously accommodated. The FBI and Justice Department even allowed a fact witness and potential target— Cheryl Mills, formerly the State Department’s chief of staff—to simultaneously represent Mrs. Clinton as her counsel.

Immunize only witnesses who can help deliver convictions. One person in Gov. McDonnell’s case got immunity: Jonnie Williams, the prosecution’s star witness. For his testimony, Mr. Williams earned a wealth of blanket immunity—not simply from potential bribery prosecution but also from unrelated crimes he might have committed (including securities and tax fraud). Reluctant witnesses—Gov. McDonnell’s children and friends—were called before a grand jury and forced to testify. CONTINUE AT SITE