More support for the theory: Comey is sabotaging Obama's order that he let Hillary skate

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Published by: Dan Calabrese on Thursday September 08th, 2016

It's the only way to explain his behavior.

On first glance, it appears James Comey is the leader of the FBI's effort to let Hillary get away with her crimes. Not only did he decline to recommend her prosecution when the evidence clearly showed she was guilty of multiple felonies (although not as many as we know about now), but the more we learn about the FBI's investigative processes in the case - particularly the bizarre manner in which they interviewed Hillary herself - it seems obvious that this whole thing was a setup designed to have the FBI go through the motions with no real intention of getting to the truth or acting on it.

That indicts Comey pretty badly.

And yet, there's one problem with the Comey-as-bad-guy narrative: The only reason we know any of this is Jim Comey told us. He's the one who made high-profile public statements clearly spelling out all the evidence that Hillary was guilty of gross negligence in the handling of classified material via her schlock, homebrew e-mail server. And what we've learned in the past week about the Hillary's destruction of evidence in defiance of a congressional subpoena, and of the totally inappropriate nature of the FBI's questioning in the case, we've learned only because Comey took the unusual step of releasing all the FBI's notes on this.

Why would he do that if he was a co-conspirator in the save-Hillary effort clearly led by his bosses at the White House and the Justice Department?

I offered a theory back on July 6: That Comey let Hillary skate only because he was under express orders from Obama and Loretta Lynch to do so, and that he didn't like it one bit. Thus, his decision to release so much information pointing to her guilt is his way of exposing not only Hillary's malfeasance but that of his bosses too.

If that's his gambit, it's borderline brilliant. If Hillary gets indicted, her lawyers go to work defending her and the media gushes over the legal brilliance of her team in getting her off. This way, the lack of an indictment stinks to high heaven, and not only taints her but Obama and Lynch in the process.

And the release of this latest batch of information only further convinces me that this is what Comey is up to. We return again to the brilliant Andrew McCarthy, who explains in detail for National Review just how much is wrong with what the FBI did - all of which we know because Comey released the notes:

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.

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 communications about the e-mail vetting process were not privileged.

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.

As usual when I excerpt McCarthy, I have surely exceeded what I probably should have in terms of fair use, and I still haven't really given you enough of the substance here. Please, click over to National Review and read the whole thing. It's powerful. But to sum up McCarthy's points:

- It's clear that Hillary's lawyers and her IT team made a point of trying to destroy her e-mails after the New York Times first reported the existence of her schlock, homebrew server, and after she claimed she wanted all her e-mails released.

- It's clear that the claims the FBI let Hillary's team get away with not answering a lot of questions using completely absurd claims of attorney-client privilege, when anyone who knew the slightest thing about this principle would have recognized it did not apply.

- It's clear that the FBI failed to ask fairly obvious followup questions when Hillary gave obviously false answers to their questions.

So why did Comey let us see all this? If the objective was to prove that the FBI's investigation was thorough, serious and fair, he obviously didn't accomplish that goal. And surely he knew that would be the case. Comey can't possibly be incompetent enough to think the information contained in these reports demonstrates the FBI did a good job. By the way McCarthy and Comey have known each other for many years, and Comey is well aware that McCarthy is jumping all over every release of information and picking them apart as he's done here.

And yet Comey keep releasing more information. Why would he do that? The only explanation I can come up with is that Comey let Hillary off the hook under duress, and this is his way of letting us all know just how rotten this whole process was.

Is that better than defying his bosses and recommending her prosecution anyway? I guess we could debate that all day long. But he's giving us a lot to work with, so we'd better make the most of it.

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