Why did the DOJ back Cheryl Mills’ specious privilege claims?

Shannen Coffin sees Cheryl’s Mill’s participation in Hillary Clinton’s FBI interview as “Exhibit A for those who wonder whether [the] interview was all for show.” Count me among those wondering, all the more so after reading Coffin’s piece.

Writing in the Weekly Standard, Coffin explains:

Mills was hip-deep in the events at the heart of the FBI’s criminal investigation and was herself a material witness who had previously sat for her own interview. Yet not only was she allowed by the Department of Justice to participate as counsel in Clinton’s interview, her communications with Clinton and other material witnesses also were actively protected by the Department of Justice throughout the criminal and civil investigations.

Typically, the DOJ would look askance where a material witness sought to act as a lawyer for the subject of a federal criminal investigation. In Mills’s case, Justice lawyers went out of their way to accommodate this highly unusual dual-hat role.

That Mills was involved in the events the FBI was investigating cannot be disputed. She was a regular correspondent with Clinton on the private email system and she testified as a fact witness about her personal knowledge of Clinton’s email setup in both the FBI investigation and related civil depositions.

Mills nonetheless purported to represent Clinton as her lawyer. However, as Coffin points, Mills was not a lawyer for Clinton during her tenure at the State Department. Although her title was “Chief of Staff and Counselor,” she has testified that the “counselor” position was “not a lawyer role”; it was a “policy role.”

Mills says she became Clinton’s lawyer after the Secretary of State stepped down in 2013. At that time, Clinton hired Mills as her personal lawyer to coordinate the response to State’s demand for return of her emails.

As such, Mills frequently invoked the attorney-client privilege to avoid answering questions about Clinton’s email setup. For example, when asked about the email setup and conversations she might have had with Clinton’s IT specialist, Bryan Pagliano, Mills refused to answer, claiming those conversations were privileged attorney-client communication.

The problem with this claim is that Mills’s knowledge of facts learned while serving in a non-legal capacity at the State Department cannot possibly be protected by an attorney-client privilege. How did Mills get around this? Coffin tells us:

To fix that problem, Mills conveniently claimed that she did not know anything about Clinton’s email setup during her tenure at the State Department and only learned of relevant facts in her later capacity as Mrs. Clinton’s personal lawyer.

But this raised a new problem — Mills quite obviously knew about Clinton’s email setup while she was at State:

Mills’s implausible claim she was unaware of the nature of Clinton’s email setup during her tenure at State is undermined by documents showing that Mills was deeply involved as chief of staff in resolving questions regarding Clinton’s email use.

A March 2009 memo addressed to Mills from the assistant secretary for diplomatic security, for instance, advised against Clinton and her staff using BlackBerry devices in the executive suite, known as “Mahogany Row,” because it was a secure area. Similarly, an August 2011 email chain addressed “communications issues” flagged by Mills, including a suggestion from State Department IT officials (later rejected by Huma Abedin) regarding the possibility of a State-issued BlackBerry for Clinton.

Mills also invoked the attorney-client privilege based on the claim that certain facts she became aware of as Clinton’s chief of staff were off-limits because she had “refreshed her recollection” as to those facts during her time representing Clinton in the private sector. But, as Coffin says, Mills could only “refresh” her recollection because she had knowledge of those facts during her tenure as Clinton’s chief of staff, putting those facts well beyond the protection of any privilege.

How did Mills get away with her specious attorney-client privilege claims? How, for that matter, did she get away with serving as Clinton’s lawyer on matters being criminally investigated that she participated in as a federal employee?

Easy. The Obama Justice Department didn’t object.

Worse, the DOJ actively supported Mills’ claims when the FBI tested them:

The Washington Post reported that when the FBI interviewers broached the question in her May interview of how the email server was set up, Mills and her lawyer walked out. Clinton and her lawyers had demanded that that topic be off-limits to the FBI because of Mills’s more recent role as Clinton’s lawyer. The Justice Department apparently agreed. Department lawyers were reportedly taken aback that their FBI colleague had ventured beyond what was anticipated.

The DOJ also backed Mills’ legal position during her civil deposition:

On two occasions in that deposition, a lawyer from the Department of Justice’s Civil Division, which represents the State Department in the FOIA cases, invoked Mrs. Clinton’s personal attorney-client privilege to object to questions about Mills’s knowledge of the email setup. When Mills was asked what Pagliano had told her about the setup of the server, a Department of Justice lawyer objected that those conversations had taken place “during the time that [Mills] was representing Secretary Clinton.”

If such a privilege existed, it certainly was not the place of the Department of Justice to invoke it to protect Mills from testifying.

Thus, Coffin concludes:

On one hand, DOJ was purportedly investigating Clinton, and perhaps even Mills, for the mishandling of government information, including over 2,000 classified emails. On the other, the same Department of Justice was shielding Mills from accounting for her role in the email scandal.

Is it any wonder that the FBI and Department of Justice came to the conclusion that they did?

No. Not really.

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