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Former Attorney General Loretta Lynch obtained evidence that a computer contractor working under the direction of Hillary Clintons legal team destroyed subpoenaed records that the former secretary of state stored on a private email server she originally kept at her New York home, and then lied to investigators about it. Yet no charges were brought against Clinton, her lawyers, or her paid consultant.

The leniency accorded to Clinton contrasts with recent moves by Attorney General Merrick Garland to aggressively investigate former President Trump and his lawyers for allegedly obstructing investigators efforts to locate subpoenaed records at his Florida home. Legal experts say the apparent double standard may provide a useful defense for Trump and his legal team.

The treatment of Clinton included a deal with her defense team that required the FBI to, in effect, obstruct its own investigation. During its 2016 probe, the bureau agreed with her lawyers' demands to destroy two laptop hard drives containing subpoenaed evidence immediately after searching for files on them. They did so while the information was still being sought by congressional investigators and even though the lawyers had served under Clinton at the State Department and were subjects of the FBIs investigation. In fact, the laptops were theirs.

Long before it bowed to the request, the FBI suspected Clinton's lawyers played hide-and-seek with evidence, making the concession that much more baffling.

The scandal first erupted on March 2, 2015, when news broke that Clinton had secretly set up a non-government email server in the basement of her Chappaqua, N.Y., mansion in the weeks before she started her job at Foggy Bottom in early 2009. She used the unauthorized and unsecured device to conduct official State Department business including transmitting and storing classified information which allowed her to bypass legally mandated archiving of her government records.

The next day, the House Select Committee on Benghazi sent her attorney David Kendall a letter advising his client to preserve all electronicrecordscreated since January 2009 and specifically not to delete any emails on her private server. The panel then issued a subpoena for recordsrelated to the deadlyterroristattack on the U.S. consulate in Libya.

Three weeks later, on March 25, Kendall and former Clinton chief of staff Cheryl Mills, who also acted as her personal attorney, asked a computer contractor with Platte River Networks, which hosted Clintons secret email server, to join a conference call with them, according to FBI documents. Over the next week, the contractor, Paul Combetta, deleted the entire email archive from Clinton's server using a software program called BleachBit, which digitally shreds" files to prevent their recovery.

All told, the paid Clinton agent scrubbed 31,830 emails from her server and backup files. In addition, he permanently removed duplicates of the emails from the laptops of Mills and another Clinton lawyer and aide, Heather Samuelson, where they also had been stored. According to FBI records, Combetta knew the documents he destroyed were under subpoena.

In July 2015, the FBI counterintelligence division opened a criminal investigation, codenamed Midyear Exam, in response to a referral from the intelligence community inspector general concerning Clintons unsecure server. The FBI predicated the opening of the probe on the possible compromise of highly classified Sensitive Compartmented Information. Emails classified at the SCI level were later found on Clintons server.

Some career FBI agents working on the case, which was tightly controlled within headquarters and deemed a SIM, or sensitive investigative matter, thought they had a slam-dunk case of obstruction, a key aggravating factor for prosecuting cases involving the mishandling of classified information or government records. All they had to do was get Combetta in a chair and pressure him to implicate the high-level Clinton surrogates who told him what they wanted done.

Several investigators believed "that Combettas truthful testimony was essential for assessing criminal intent for Clinton and other individuals, because he would be able to tell them whether Clintons attorneys Mills, Samuelson or Kendall had instructed him to delete emails, according to a 2018 report by the DOJ's inspector general.

But during voluntary interviews with FBI agents, Combetta falsely denied he haddeleted or purgedClintons emails from the server or back-ups, and insisted Clintonslegal team never requested that he do so.

Combetta refused to talk to investigators about the critical March 2015 conference call with Clinton's lawyers that precededhis purge ofevidence, the only topic he refused to speak about. So investigators and prosecutors agreed to givehim immunity and interview him again.Still,they never got his account of the conference call. A written FBIsummary of the interview, known as an FD-302 report, does not reference thecall, indicating that agents failed tofollow up on a key line of questioning in the investigation.

Investigators declined to pursue other aspects of the case as well. They obtained an email in which Combetta told a colleague he was part of aHilary[sic] coverupoperation and said he would elaborate later at a "party." Asked about it, Combetta claimed he was just joking; the FBIaccepted his explanation and did not appear to follow up with the colleague to learn what they discussed at theparty.

The FBI also accepted another explanation for why Combetta, using the screen name stonetear," sought technical assistance on theReddit forum on how to "strip out" the email addresses of a VERY VIP" client from a a bunch of archived email, in an apparent reference toClinton. (AfterInternet sleuths revealed stonetear was a name Combetta used in other forums,he began scrubbing his postsfrom the web.)

An FBI case supervisor told the inspector general that he believed Combetta should have been charged with false statements for lying multiple times, according to the IG report, but prosecutors refused to indict him. The FBI also obtained forensic evidence from the server that could establish that Combetta made the deletions, but prosecutors balked at charging him with obstruction.

Then-FBI Director James Comey personally agreed with the DOJ decision to give Combetta immunity ratherthan sweating him in a grandjury box, which typically is done with subjects who are lying, to get them to tell thetruth.

Comey was forced to defend the deal in an October2016 conference with FBI supervisors, who werehearingcomplaintsfrom rank-and-file agents that headquarters handed out immunity dealslike candy toClinton witnesses.Comeyexplained the bureau wasn't interested in prosecuting a small fish like Combetta, and sought only tomassage him for information to make a caseon Hillary Clinton, even though internal FBI emails reveal Comey already had decided to let Clinton off the hook. He did not explain why the contractor hadnt been pressured more with threats to bring charges against him for lying to agents, the traditional investigativemethod for getting such an uncooperativewitness to turn.

With respect to Combetta, we found his actions in deleting Clintons emails in violation of a congressionalsubpoena and preservation orderand then lying about it to the FBI to be particularly serious, DOJ InspectorGeneral Michael Horowitz said in hisreport. We asked the prosecutors why they chose to grant him immunity instead of charging him with obstruction of justice.

One DOJ prosecutor told Horowitzs investigators they wanted to make Combetta feel comfortable enough that he would eventuallycooperate on his own. Another said they weren't interested in prosecuting a bit player for lying and that doing sowould just bog down the investigation, which they were rushing to wrap up well before the November 2016 presidential election.

"I was concerned that we would end up with obstruction cases againstsome poor schmuck on the down that had a crappy attorneywho[was]hiding theball,the unidentified prosecutor said.

"And soat the end of the day, I was like, look, lets immunize him. Weve gotto get from Point A to Point B. Point B is to make a prosecutiondecision aboutHillary Clinton and her senior staff well before the election if possible, the prosecutor added. "And this guy with his dumbattorney doing somehalf-assed obstruction did notinterest me.So I was totally in favor ofgiving him immunity."

The prosecutors reported directly to then-DOJ counterespionage official David Laufman, who would later play a key role in the discredited Russiagate probe, including opening investigations on several Trump advisers and signing off on wiretap warrants targeting at least one Trump aide, even though he knew they were based on a fabricated dossier financed by the Clinton campaign.

Prosecutors also gave Clinton aides Mills and Samuelson immunity deals, over the objections of some FBI investigatorswho wanted to bringthem before a grand jury to explain their actions.

A handful of agents also argued for issuing a searchwarrant to seize their personal laptops, which they used to upload all the emails fromthe Clinton server and cullaway supposedly personal messages that they claimed were out of the reach of investigators. Instead,prosecutors opted to review the laptops through an unusual consent agreement, which restricted searches tocertain files and specific dates and nothing before or after Clintons tenure as secretary, which put anyemail exchanges with Combetta out of reach and required theFBI to destroy the hard drives after conducting thelimited search, according todocumentsoutlining the agreement.

This is simply astonishing given the likelihood that evidence on the laptops would be of interest tocongressional investigators, formerSenate Judiciary Chairman Chuck Grassley and three other GOP congressional leaderscomplained in aletterto DOJ at the time.

In his talk at the FBI conference, Comey explainedthat he had to agree with prosecutors and defense lawyers to limit the search because ofhuge concernsthat attorney-client privilege and attorney work product could be discovered on the laptops, a concern that apparently didnot register in the broad,sweeping search of Trumps records. Agents scooped up at least 520 pages of attorney-client privileged informationduring their raid of Mar-a-Lago,according to a federal judge who has ordered an independent inspector to review the seized records forprivileged material.

Mills and Samuelson, who agreed to answer only a narrow scope of questions to prevent investigators from solicitingprivileged information,were later allowed to sit in on Clintons own interview, which the FBI conducted after Comeyhad already drafted a statement exonerating herof mishandling classified information and obstructing justice. Thedirector famously delivered the statement in a July 5, 2016, pressconference, proclaiming the FBI found no evidencethat Clintons emails were intentionally deleted in an effort to conceal them.

Grassley says the FBI pulled its punches investigating Clinton in comparison to Trump, who he says is being harshly investigated andprosecuted for the same offenses.

Trump has not been provided the same (gentle) treatment given to Secretary Clinton and her associates,Grassley asserted in a recentstatement.

To be sure, the agency has used more intrusive methods probing Trump for similar allegations ofmishandling classified information andconcealing documents under subpoena.

Unlike the Clinton probe, where investigators and prosecutors sought to obtain evidence by consent whenever possible, the department has used a federal grand jury to issue subpoenas to Trump for thousands of documents, as well as surveillance video footage, from his Palm Beach estate. They also obtained a search warrant to raid his private office and family bedrooms. In addition to seizing more than 11,000 documents, agents confiscated some 1,800 personal items, including gifts, photo albums, clothing, passports, and medical and tax records, according to court records.

Clinton and her representatives were spared such heavy-handed tactics andindignities, the senator pointed out.

Even though Secretary Clinton and her attorneys did not hand over classified records in their possession, they were not subject to a raid similar to what occurred at Mar-a-Lago, Grassley said.

In the end, computer-forensics investigators and intelligence analysts were able to determine that at least 81 classified email chains were transmitted and stored on Clintons unclassified personal server. Their levels ranged from CONFIDENTIAL to TOP SECRET/SPECIAL ACCESS PROGRAM, a highly sensitive designation which makes access to certain information restricted even to Secret and Top Secret clearance-holders without a need to know. By comparison, the FBI recovered 100 documents with classified markings from its raid of Trumps home. They range in level from CONFIDENTIAL to TOP SECRET.

In a court filing last month, DOJ said it developed evidence that presidential records held in a basement storage room at Mar-a-Lago may have been concealed or removed prior to a June visit by FBI agents to pick up classified documents, suggesting possible attempts to obstruct investigators.

Investigators issued a grand jury subpoena in May for the records and visited Mar-a-Lago on June 3 to pick them up. When they got there, the filing said, a Trump lawyer handed them a large envelope containing documents. Another lawyer acting as the official custodian of Trumps records certified in a sworn statement that they conducted a diligent search for classified papers in response to the subpoena. Over the next two months however, officials developed evidence that government records were likely concealed and removed from the storage room and that efforts were likely taken to obstruct the governments investigation, DOJ said in its filing, without specifying what it believes was removed from the room, or by whom. The affidavit explained that this suspicion is why it sent some 30 armed agents back to Mar-a-Lago early last month to conduct a massive search of the property.

Prosecutors say the additional documents they found with classified markings cast doubt on claims by Trumps lawyers that they were fullycooperative with the subpoena. They aresaid to be focusing their investigation on Trump lawyer Christina Bobb, in particular, who allegedly acted as the custodian who signed the certification.

Bobb, who has not been charged with a crime, did not respond to requests for comment. Trumps legal team has told the court that the DOJ significantly mischaracterized the June meeting with Bobb and another lawyer, but did not elaborate.

Laufman, the top prosecutor in the Clinton case and a caustic critic of Trump in the media, believes Trump should also be worried and has significant criminal exposure to an obstruction rap. Either [his lawyers] wittingly lied or they got that assurance from their client, in which case Trump has jeopardy, Laufman, an Obama appointee and donor, told Politico.

But at this point, investigators can only speculate that documents were intentionally moved or destroyed to avoid compliance with subpoenas, which would be a felony. Legal experts note that prosecutors were careful to say in their filing that documents were likely concealed and that efforts were likely taken to obstruct the investigation, indicating they still lack solid evidence.

It is not clear from the filing if the FBI has evidence of intentional acts of concealment as opposed to negligence, George Washington University law professor Jonathan Turley said.

By contrast, prosecutors had solid material evidence including emails, phone calls, work tickets and computer forensics that Clinton operatives conspired to not just conceal but actually destroy documents under subpoena in violation of Section 1519 of the federal criminal code, the same statute cited by the FBI in its warrant to search Mar-a-Lago. It bars the destruction or falsification of any documents or materials with the intent to impede, obstruct or influence an investigation.

"Did Hillary Clinton violate 18 USC 1519 when emails from her private email server were destroyed during government investigation?Possibly, yes,saidDonald Skupsky, a lawyer specializing in government records-retention procedures.

"In December 2014, she did instruct her team to destroy remaining emails after 60 days. And ultimately, she never halted nor protested again any records destruction, he added. "Under 18 USC 1519, Clinton may have concealed and covered up the destruction of records."

Both the Trump and Clinton cases also invoke Section 2071, a federal statute which prohibits the willful concealment, removal, or destruction of federal records. But in investigating Clintons homebrew server scheme, prosecutors declined to pursue a Section 2071 charge because they argued the statute had never been used to prosecute individuals for attempting to avoid Federal Records Act requirements by failing to ensure that government records are filed appropriately, according to the IG report. Some legal experts say the same standard should apply to Trump, whom the DOJ said tried to avoid Presidential Records Act requirements.

Trump lawyer Jim Trusty said Trumps retention of allegedly classified papers is akin to an overdue library book and complained that Bidenadministration prosecutors are holding him to a different standard than anyone else because he is a Republican.

U.S. District Judge Aileen Cannon earlier this month issued an injunction temporarily barring the Justice Department from using the seized material in its espionage investigation until a Special Master can review it for privileged and other information outside the scope of the probe.

Despite the order, the obstruction part of DOJ's probe can move forward. Among other things, investigators can continue to interview witnesses about whether subpoenaed documents were moved or concealed.

DOJ is in the midst of an ongoing criminal investigation pertaining to potential violations of the Espionage Act, as well as obstruction of justice, 18 USC 1519, and unlawful concealment or removal of government records, 18 USC 2071, DOJ chief counterintelligence prosecutor Jay Bratt stated in a recent court filing.

Read more from the original source:
Unpacking the Apparent Trump-Hillary Double Standard: For Her, the FBI Helped Obstruct Its Own Investigation - Longview News-Journal