RUTHFULLY YOURS

http://www.nationalreview.com/node/439804/print

Imagine a mafia don who wants to have some evidence destroyed, maybe even have a witness “disappear.” Does he have a sit-down with his trusted capos, who will then give the job to a reliable button-man? Not if he’s taken the Clinton Family course in advanced criminology — known around the campus as “(C).” If the don is a graduate, he knows the new way to get away with murder is to have all your orders communicated by your lawyers.

At the Washington Examiner Wednesday, Byron York had a very interesting report about the destruction of thousands of Clinton e-mails after Congress had issued a subpoena for them. (Obstruction of a congressional investigation is a felony under federal law.) The report is based on the FBI’s heavily redacted summary report of its Clinton e-mails investigation.

The e-mails were destroyed by a technician at Platte River Network (PRN), which had been retained by Clinton to handle her server. The tech is clearly a man (referred to as “he” several times), but his name is redacted from the FBI report. Evidence strongly suggests that this PRN technician initially lied to the FBI, then changed his story and clammed up about any instructions he might have been given.

A bit of background: In December 2014, Cheryl Mills instructed the PRN tech to implement a change in Clinton’s e-mail-retention policy: Any e-mails older than 60 days (translation: any remaining e-mails from Clinton’s time as secretary of state) were to be purged from the server. Purging in this context did not just mean deletion, it meant destruction: The Clinton team was using the BleachBit program to ensure that the purged e-mails could never be retrieved or reassembled. This was a conscious scorched-earth operation, headed up by Mills, the Clinton Family’s Tom Hayden — longtime consigliere and Clinton’s chief-of-staff at the State Department.

But there’s a Fredo in every good crime story, right? In this case, it is the PRN tech, who apparently did not follow instructions. According to his original story to the FBI, about three months went by when, out of the blue, in what he described as an “Oh sh**!” moment, he remembered that he had forgotten to purge the e-mails. So . . . he of course took it on himself to do it.

You’ll be shocked to learn, though, that that’s not quite how it happened.

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On March 3, 2015, the New York Times broke the story that, while secretary of state, Mrs. Clinton had systematically used an unauthorized homebrew server system for all her e-mail communications, including the tens of thousands related to government business. This finally roused the House Benghazi Committee from its slumbers. (As I noted at the time, the Benghazi Committee had curiously failed to issue a subpoena for Clinton’s private e-mails, despite knowing of her use of private e-mail addresses for government business even before the Times report revealed them publicly.) The same day the Times report was published, the committee zipped a letter to David Kendall, Clinton’s lawyer at the prestigious Williams & Connolly in Washington, D.C. (Clinton has a legion of lawyers, but W&C’s Kendall is her main outside-the-government attorney.) The committee’s letter demanded that the e-mails be preserved and produced. The next day, March 4, the committee issued a subpoena directing Clinton to produce e-mails from her private e-mail addresses.

In the days that followed, Mills confirmed that data on all relevant server equipment had been migrated to the PRN server. Then, according to the FBI report, a conference call was convened on March 25, 2015, with the PRN tech and “President Clinton’s staff.” The redacted version of the report does not make clear to whom “President Clinton’s staff” refers.

Sometime shortly after this conference call, the PRN tech purged the archived e-mails, using the BleachBit program. I surmise that the purging occurred on March 25 or 26, and that the completion of the purge was swiftly reported to Clinton’s lawyers. Why? Because, as Byron recounts in his news story this week, Kendall informed Benghazi Committee Chairman Trey Gowdy by letter on March 27, two days after the conference call with PRN, that Clinton’s “IT support” people had “confirmed” to him “that no e-mails from” Clinton’s relevant private address (hrd22@clintonemail.com) “reside on the server or on any back-up systems associated with the server.”

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Naturally, Kendall did not elaborate that thousands of such e-mails had resided on the server and back-up systems until the PRN tech purged them over the previous few days.

Meanwhile, the PRN tech’s machinations resulted in the generation of a “work ticket.” Although the redacted FBI report does not reproduce the work ticket, it does note that there was another conference call on March 31 (four days after Kendall’s letter to Gowdy) that included PRN personnel, Kendall, and Mills.

So what was the PRN tech told to do during the March 25 call, right before the purge of e-mails that were under congressional subpoena? What was the substance of the discussion during the March 31 conference call, after the subpoenaed e-mails had been purged? We do not know because participants apparently claim that the attorney-client privilege shields these discussions from disclosure to investigators.

Whose attorney-client privilege? Apparently, Mrs. Clinton’s.

This is ridiculous. The attorney-client privilege protects from disclosure confidential communications between a client and her attorney for the purpose of obtaining and providing legal advice. There are significant limitations on it.

First, the communications must be confidential and strictly limited to the client and her lawyer(s), which can be extended to those providing support services necessary to the legal representation — e.g., paralegals. Moreover, the privilege covers only communications of legal advice. The fact that a person involved in a conversation or activity happens to be a lawyer does not in and of itself convert that conversation or activity into the privileged rendering of legal advice that shields it from investigators. If I tell my employee or friend to bring my lawyer along to a business meeting or the Met game, that does not mean police are barred from asking what happened and what was discussed at the meeting or the game.

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Which brings us to the departure from the attorney-client privilege most salient for present purposes, the so-called crime-fraud exception. Even if there is a formal attorney-client relationship, the privilege does not shield from disclosure communications under circumstances in which 1) the client was committing or plotting a fraud or crime, and 2) the communications between attorney and client were in furtherance of that fraud or crime. Let’s say the client is scheming to mislead congressional or law-enforcement investigators, or a court. If the client seeks advice from a lawyer about how best to carry out the scheme, there is no legitimate resort to the attorney-client privilege to thwart government investigations. Communications between the client and her attorney are not protected and may be inquired into.

Obviously, were this not the case, the leaders of a criminal enterprise could immunize themselves from investigation and prosecution by simply keeping lawyers on retention to help plan crimes and be on hand when crimes are committed.

There is a final principle of legal ethics applicable to the Clinton caper — one we have discussed before but must revisit. If a lawyer has been a government official, she is not permitted subsequently to act as a private lawyer “in connection with a matter in which the lawyer participated personally and substantially” as a government official. Thus, for example, Cheryl Mills should not have been permitted to act as Clinton’s private lawyer in connection with matters arising out of then–Secretary Clinton’s e-mail communications practices at the State Department when Mills was her chief of staff.

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The same is true of Heather Samuelson, a young lawyer who was a Clinton staffer and Mills’s subordinate at the State Department. Samuelson not only purported to act in the role of a lawyer in helping Mills vet Clinton’s e-mails for disclosure or destruction; she, like Mills, was also permitted to appear as a lawyer for Clinton at the latter’s FBI interview.

Putting these principles together, there is no way the Obama Justice Department and the FBI should have indulged the attorney-client privilege claims posited by their former colleagues from the Obama State Department, or by Clinton’s other lawyers, particularly David Kendall.

As we have previously observed, the Justice Department barred the FBI from questioning Mills about the process of selecting which e-mails were disclosed and which destroyed. This was absurd. It prevented investigation of the core of the case. Mills was an actor in the facts under investigation and was not, in any event, eligible to function as Clinton’s lawyer. The fact that she may have learned some additional information about Clinton’s e-mail set-up after leaving the State Department is irrelevant; she could not be Clinton’s lawyer for these purposes, and her More significantly, however, are the indications that the Clinton team was engaged in a fraud and crime — perhaps several crimes arising out of the overarching scheme to 1) hoard Clinton’s e-mails; 2) shield thousands of them from lawfully required disclosure to Congress, the courts, and the public; and 3) destroy thousands of them notwithstanding (a) a congressional subpoena; (b) their known relevance to several investigations and court proceedings; and (c) their patent status as government records.

The known evidence powerfully suggests that the PRN tech and other PRN personnel were complicit in the destruction of thousands of e-mails, which Congress had lawfully demanded and the Clinton team knew were potentially responsive — not just to the Benghazi committee’s inquiry but to other legal proceedings as well.

Consequently, the FBI should not have been prevented from questioning the PRN tech about the conference calls with Clinton’s agents on March 25 and 31, 2015. Clearly, there is a reason he initially gave a misleading account of why he destroyed the e-mails after the subpoena was issued. There is a reason that he, his PRN superiors, and the Clinton team did not want him to tell the FBI whether the obstructive actions he took had anything to do with instructions he received. The possible participation of Kendall in these meetings changes nothing. He was not PRN’s lawyer, PRN was not providing Clinton with legal services, and the entire enterprise appears to have had an obstructive design — a suggestion only heightened by the disturbing “nothing to see here” letter Kendall sent to Gowdy on March 27, apparently after the purge.

Something stinks here.

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