RUTHFULLY YOURS

Well, what would Friday be without the latest document dump from the Clinton email investigation? Yesterday afternoon, with the public in distracted anticipation of the coming weekend and Monday’s Clinton-Trump debate showdown, the FBI released another 189 pages of interview reports.

Along with this document dump comes remarkable news: The Obama Justice Department reportedly gave top Clinton aide and confidant Cheryl Mills immunity from prosecution for any incriminating information located on her personal computer.

According to House Oversight Committee Chairman Jason Chaffetz (R., Utah), the limited immunity was granted in order to persuade Ms. Mills to surrender her laptop computer so the FBI could check whether classified information was stored on it.

This is very strange. There was no need to grant concessions to Mills. The Justice Department could have required the production of the computer by simply issuing a grand jury subpoena. And had there been any concern that Mills would not cooperate, would destroy the computer, or would “misplace” it (as Team Clinton claims to have misplaced so many Hillary devices), investigators could have applied for a search warrant and seized the computer.

In normal cases, the Justice Department does not grant immunity in exchange for evidence when it has lawful power to compel production of that evidence.

Mills is not alone. Apparently her subordinate, longtime Clinton aide Heather Samuelson, was given the same deal.

Unbelievably, Mills and Samuelson, who are lawyers, were also permitted to represent Hillary Clinton in the very same investigation in which, we now learn, they were personally granted immunity from prosecution. That’s apart from the fact that both of them were involved as government officials at the time they engaged in some of the conduct under investigation – a circumstance that, by itself, should have disqualified them from later serving as lawyers for other subjects in the same the investigation.

As readers may recall, I have been trying to draw attention to questions about immunity in the Clinton emails investigation since last spring (see here and here). That was when we first learned that some form of immunity had been given to Brian Pagliano. He is the Clinton family employee who serviced then-Secretary Clinton’s unauthorized private server and, astonishingly, later drew a large State Department salary while continuing to be paid on the side by the Clintons.

As explained in my preceding post, there appears to be no good rationale for the Justice Department’s decision to grant Cheryl Mills immunity from prosecution for any incriminating data on her computer in exchange for her agreement to surrender the computer. The Justice Department could simply have issued a grand jury subpoena requiring Mills to hand over the computer. Nevertheless, this being a legal discussion, I wouldn’t disappoint you by saying there are no caveats.

I should thus address what’s known as “act of production” privilege. It is derived from the Fifth Amendment privilege against self-incrimination, reflecting the salient difference between (a) a physical object, and (b) the potentially incriminating testimonial implications of surrendering that object to investigators.

The easiest way to think about this is to consider the difference between arrest and interrogation. If, as an investigator, I arrest you for armed bank robbery, I am entitled to get any evidentiary benefit your physical person gives my case. For example, I can put you in a line-up to enable eyewitnesses to identify you as the robber, or I can search your pockets for the money and the gun. But the Constitution bars me from coercing you to make any statements that would help me prove your guilt. Under the Fifth Amendment, you have the right to remain silent.

These same principles operate with respect to physical evidence that is in your possession, even if it is not located on your physical person.

There are some situations in which complying with a subpoena can be the functional equivalent of admitting guilt. Let’s say I’m a prosecutor in a drug investigation. I issue a subpoena demanding that X produce any ledger of illegal narcotics transactions in X’s possession. Turns out that X does possess such a document, but his lawyer realizes that, if X hands the document over to me, this would be an implicit confession that (a) the document is, in fact, a ledger of illegal drug deals, and (b) X has been in possession of it. So, if X were to comply with the subpoena, which the law requires him to do, I would obtain not only the physical ledger, the contents of which I can use in a drug conspiracy prosecution against X; I would also get a windfall: what amounts to testimonial admissions by X that would help me prove his knowing participation in the drug conspiracy.

Obviously, X does not want to give me the ledger. Yet, X knows that he has been issued a lawful subpoena for this physical evidence. If I later find out that he has withheld the ledger in defiance of the subpoena, I could prosecute him for obstruction of justice and contempt.

To resolve this dilemma between (a) the lawful duty to comply with a subpoena demanding production of physical evidence and (b) the constitutional privilege against admitting guilt, the prosecutor grants a limited form of protection known as “act of production” immunity.

Under this arrangement, X must surrender the ledger, and if there is information in the ledger that incriminates X, the prosecution may use that information against X. But the prosecution forfeits the ability to use against X the fact that X, by surrendering the ledger, effectively admitted both that it was a drug ledger and was in X’s possession.

As you can imagine, this is very routine in law enforcement.

“Oh what tangled webs we weave, when we first practice to deceive.” Sir Walter Scott

When Dr. Lisa Bardack[*] was asked to become Hillary Clinton’s personal physician in 2001, it had to have been a crowning moment in the career of the Mt. Kisco internist. Dr. Bardack could have anticipated little downside. She already had the responsibility — and legal obligation under HIPAA — to protect the privacy of her patient. She and her staff would have to be especially scrupulous in the case of a senator with presidential ambitions, but this should not have posed a serious problem.

Unfortunately, Hillary Clinton corrupts everyone who serves her. And this year Bardack encountered difficulties she could not have foreseen in 2001:

1. Clinton developed serious medical issues.

2. The candidate was being videoed, not only during campaign stops, speeches, townhalls, and the rare press conference, but before and after events — by individuals with cell phones who were under no obligation to obey orders given to servile journalists to turn off their cameras.

3. The internet not only permitted the mass distribution of these videos and photos, but it enabled those who were curious to check Bardack’s reports against information available on reputable medical sites. It also enabled skeptical physicians to share their doubts with hundreds of thousands of readers.

In July 2015, the Clinton campaign asked Bardack to give the candidate a clean bill of health. She was to disclose, selectively, some of her patient’s medical history. But the letter was not widely analyzed until after the disturbing September 11 video by Zdenek Gazda, the Zapruder of 2016. It was no longer possible to dismiss those asking questions about Hillary’s health as right-wing conspiracy theorists, and the campaign now requested a second letter from Dr. Bardack explaining the event. The physician duly issued a report on September 14. Now her real problems began.

Let’s take a look at the two letters and some of questions doctors have asked about the diagnoses and treatment.

I. The letter of 12 July 2015

Bardack’s summary revealed a couple of major health problems that had not been previously disclosed. We had been told that Clinton suffered an elbow fracture in 2009 and a concussion in 2012. The fact that a woman in her mid-60s would fall twice ought perhaps to have raised some red flags. In particular, unless you’re being tackled or attacked, a concussion can usually be avoided by the body’s reflexes. Arms are extended to break the fall.

But now the public learned that some time in 2009 and in December 2012, the month of the concussion, Clinton had suffered blood clots.

She already had a history of clotting. Running for the Presidential nomination in the fall of 2007, Hillary gave an extended interview on her 60th birthday in which she disclosed that she’d had a life-threatening medical emergency in 1998. The crisis had been kept a secret not only from the public, but from her staff, who were told she had a sprained ankle. Clinton’s foot had swollen and she was in great pain. A White House doctor told her to rush to Bethesda Naval Hospital, where the diagnosis of a blood clot was made. “That was scary,” Hillary said, “because you have to treat it immediately — you don’t want to take the risk that it will break lose and travel to your brain, or your heart or your lungs. That was the most significant health scare I’ve ever had.” Clinton assured the reporter that she was no longer on blood thinners. This was probably the last time Hillary spoke candidly about her health.