The DOJ double standard on emails and 'collusion'

Andrew McCarthy:
In July 2016, the Obama administration announced its decision not to prosecute Hillary Clinton for felony mishandling of classified information and destruction of government files. In the aftermath, I observed that there is a very aggressive way that the Justice Department and the FBI go about their business when they are trying to make a case — one profoundly different from the way they went about the Clinton emails investigation. There, they tried not to make the case.

That observation bears repeating today, as we watch Special Counsel Robert Mueller’s investigation of any possible Trump-campaign collusion in Russia’s alleged interference in the 2016 presidential campaign. Mueller is a former FBI director and top Justice Department prosecutor. To say he is going about the collusion caper aggressively would be an understatement. The earth is being scorched by the stunningly large team he has assembled, which includes 16 other prosecutors (among them, Democratic party donors and activists) along with dozens of investigators (mostly from the FBI and IRS).

At the end of October, Mueller announced the first charges in the case. In the intensive commentary that followed, another investigative development attracted almost no attention. But in terms of Mueller’s seriousness of purpose, it speaks just as loudly as the George Papadopoulos guilty plea and the indictment of Paul Manafort and Richard Gates.

Mueller succeeded in convincing a federal judge to force an attorney for Manafort and Gates to provide grand-jury testimony against them. As Politico’s Josh Gerstein reports, just as the charges against these defendants were announced with great fanfare, the U.S. district court in Washington, D.C., quietly unsealed a ruling compelling the testimony of the lawyer — who, though not referred to by name in the decision, has been identified by CNN as Melissa Laurenza, a partner at the Akin Gump law firm.

Interestingly, the jurist who rendered the 37-page memorandum opinion is Beryl A. Howell, who served for years as a senior Judiciary Committee adviser to the fiercely partisan Democratic Senator Pat Leahy (of Vermont) before being appointed to the bench by President Obama. Howell is now the district court’s chief judge. Why do I think that, in choosing to set up shop in Washington, Mueller and his team noted the district court’s local rule that vests the chief judge with responsibility to “hear and determine all matters relating to proceedings before the grand jury”? (See here, Rule 57.14 at p. 168.)

And why do I think that the Trump collusion case is not getting the kid-glove Clinton emails treatment?

Lest we forget, President Obama had endorsed Mrs. Clinton, his former secretary of state and his party’s nominee, to be president. Moreover, Obama had knowingly participated in the conduct for which Clinton was under investigation — using a pseudonym in communicating with her about classified government business over an unsecure private communication system.

Obama prejudiced the emails investigation. Long before it was formally ended, he publicly pronounced Clinton innocent. He theorized that she had not intended to harm the United States. Even if true, that fact would be irrelevant — it is not an element of the statutory offenses at issue, under which several military officials, who also had no intent to harm our country, have nevertheless been prosecuted. (It also had nothing to do with her quite intentional destruction of thousands of emails, many relating to government business — also a serious crime.)

As night follows day, the FBI and the Justice Department relied on Obama’s errant and self-interested rationale in dropping the case against Clinton and her accomplices. What did Obama’s subordinates do after he patently interfered in the investigation? Well, then-FBI director James Comey began drafting a statement exonerating Clinton months before the investigation ended — i.e., before over a dozen key witnesses, including Clinton herself, had been interviewed. Indeed, it has now been reported that Comey’s draft initially declaimed that Clinton had been “grossly negligent” in handling classified information — an assertion that tracked the language of one of the statutes Clinton violated. Later, in the statement he made publicly on July 5, 2016, Director Comey instead used the term “extremely careless” — substantively indistinguishable from “grossly negligent,” but the semantic shift appeared less tantamount to a finding of guilt.

In the aftermath, we extensively examined the Clinton investigation’s hyper-sensitivity to the attorney-client privilege.

Note that the lawyer for Manafort and Gates was forced to testify against her clients based on the theory that she had participated — however unwittingly — in their scheme to cover up their lobbying efforts on behalf of a Ukrainian political party. Aggressively, Mueller’s team contended that even if the lawyer had not intended to help her clients mislead the government, their use of her services was intended to dupe the government. That, Mueller argued, brought their communications with the lawyer under the crime-fraud exception to the attorney-client privilege. Chief Judge Howell agreed. As a result, the lawyer’s communications with Manafort and Gates lost their confidentiality protection, such that Mueller could compel her to reveal them to the grand jury.

Compare that with the Justice Department’s treatment of the lawyers representing Mrs. Clinton and her accomplices. Actually, I shouldn’t really put it that way because . . . Mrs. Clinton’s lawyers were her accomplices.
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There is more.

Forcing Manafort and Gates attorney to testify is extremely unusual.  It also appears that Mueller's gestapo home invasion of Manafort also collected attorney client documents.  It also seems clear that the Obama DOJ ignored a pretty clear case of destruction of evidence and obstruction of justice in order to let Clinton and her accomplices off the hook.  Democrat prosecutors just do not seem to be too interested in equal justice under the law.

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