We have come to understand the FBI was never going to take the Hillary email/server investigation seriously and the notion of lack of ‘intent’ was just another cover. Why? Well when the Barack Obama used as pseudonym to communicate with Hillary on yet another non dot gov email account and had at least another 22 email communications, the executive protection was applied. So, this FBI investigation was just a formal gesture.

Providing immunity to at least 5 witnesses involved was not really necessary but since no one trusts anyone else in Washington DC, Beth Wilkinson the lawyer of record for Hillary’s inner circle demanded immunity and those agreements do have limitations. But is anyone asking about the limitations or violations of immunity agreements? Yes…

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Clinton confidant’s immunity deal looms over debate: Jonathan Turley

FBI appears to have undermined its own investigation with ill-considered witness agreements.

USAToday: When FBI Director James B. Comey announced that there would be no criminal charges in the Clinton email scandal, there was an outcry by many who saw glaring contradictions, attempts to destroy evidence, and knowing failures to protect classified or sensitive information.  At the time, I acknowledged that Comey’s decision was understandable and, while criminal charges might have been possible, this was not out of bounds of prosecutorial discretion. However, the news this week of a previously undisclosed immunity deal with a top Clinton aide raises serious questions over the handling of the FBI investigation.

The latest recipient of an immunity deal from the Justice Department is one of Clinton’s closest aides and a figure at the heart of the email scandal, Cheryl Mills. She joins two other central figures in benefiting from such deals: former State Department staffer, Bryan Pagliano and tech specialist Paul Combetta. In addition to at least two other immunized witnesses according to the Associated Press, they represent the big three of officials involved in the underlying allegations of Clinton’s potential criminal conduct. Their collective immunization is baffling.

For the Obama Administration, the criminal investigation into the Democratic presidential nominee and its prior secretary of State came with a heightened level of public scrutiny and skepticism. Many doubted that the administration would seriously pursue the Clintons, a family of political royalty in both Democratic and establishment circles. The easiest way for prosecutors to scuttle a criminal case is to immunize those people who are at the greatest risk of criminal indictment. Often prosecutors will avoid immunity deals in favor of offering plea bargains to key players, tying their cooperation against others to reduced sentences. Although a witness can lose an immunity deal by withholding evidence or lying, a witness can undermine cases against superiors by tailoring their accounts or memories to avoid statements showing intent or knowledge.

Before the disclosure of the Mills immunity deal, the two prior deals were curious given the evidence against both Pagliano and Combetta. Pagliano set up the notorious private server and later joined Clinton at the State Department, where various people raised objections to her use of unsecured communications. If Pagliano was problematic, Combetta’s immunity deal was perplexing. Combetta used a product called BleachBit to eradicate evidence of Clinton emails after a telephone conference with Clinton staffers. When he used the product, he admitted that he knew that Congress had issued a subpoena ordering the preservation of the evidence. Then, this month, it was alleged by a “Twitter sleuth“ that Combetta, acting under the alias “stonetear,” solicited advice on how to change email records to remove a “VIP’s (VERY VIP) email address.”  Either Combetta did not disclose this effort in violation of his immunity deal or the Justice Department effectively removed a serious threat of indictment though the agreement. Despite immunity deals pledging cooperation with all parts of the government, both Pagliano and Combetta have refused to answer questions from Congress, and Pagliano is facing a contempt sanction.

Mills is a participant in key emails and features prominently in allegations of destroyed emails. She was alleged to have been informed repeatedly of the dangers to national security, particularly regarding Clinton’s use of a personal BlackBerry. She was also central in the deletion of tens of thousands of emails that Clinton claimed were purely personal and not work related.

Many of those emails are now known to have discussed official issues and potentially embarrassing disclosures. Mills’ role in the later investigations has also been controversial. Surprisingly, defense attorney Beth Wilkinson  agreed to jointly represent various former aides, including not just Mills but Deputy Chief Jake Sullivan, Mills’ deputy Heather Samuelson, and Clinton spokesman Philippe Reines. Wilkinson is a very accomplished lawyer and there is no evidence of unethical acts. However, attorneys rarely represent parties with potential conflicts of interest and the agreement allowed for a single attorney to monitor the consistency of aides in their accounts.

The joint representation of the Clinton aides increased the chance for a uniform account in the controversy. Making this even more concerning is that Mills was allowed by the FBI to sit in on the interviews with Clinton, despite that fact that she was a key witness herself in the investigation. Mills, who is a lawyer, did not hold a legal position at the State Department and should have been excluded from the interviews. Finally, Mills has continuing interests in the election of Hillary Clinton, a development that would place her at the very top of the government. 

Of all of the individuals who would warrant immunity,, most would view Mills as the very last on any list. If one assumes that there may have been criminal conduct, it is equivalent to immunizing H.R. Haldeman and John D. Ehrlichman in the investigation of Watergate. Mills appears repeatedly at critical moments as one of the most senior figures making decisions or monitoring events, including being informed as Clinton chief of staff of the search for emails by the State Department in response to a Freedom of Information demand in 2012 (three years before the disclosure of Clinton’s use of a private email server). In such circumstances, immunity can amount to impunity. Immunity does not remove the threat of prosecution, but it certainly reduces that threat, while the value of defending prior benefactors or loyalties can remain. Given the overlapping immunity deals, many will now find it unsurprising that Comey did not find evidence of “intentional misconduct or indications of disloyalty . . .  or efforts to obstruct justice.”

Comey removed the greatest threat that could have been used to get two underlings to implicate senior officials, and then gave immunity to the senior official most at risk of a charge. In the land of the immunized, the degree of cooperation can sometimes be as difficult to establish as the truth.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.

 Immunity Process Denoted by the Justice Department

9-23.100 – Witness Immunity—Generally

This chapter contains the Department’s policy and procedures for seeking “use immunity” under Title 18 U.S.C. §§ 6001-6005. Sections 6001 to 6005 provide a mechanism by which the government may apply to the court for an order granting a witness limited immunity in all judicial, administrative, and congressional proceedings when the witness asserts his or her privilege against self-incrimination under the Fifth Amendment. (Section 6003 covers court and grand jury proceedings, Section 6004 covers administrative hearings, and Section 6005 covers congressional proceedings.)

See the Criminal Resource Manual at 716 through 719, for an overview of the differences between the various types of immunity, including use immunity, derivative use immunity, transactional immunity and informal immunity.

NOTE: Although Title 21 of the United States Code contains similar immunity provisions to those contained in Title 18, the Department of Justice utilizes only those provisions contained in Title 18.

9-23.110 – Statutory Authority to Compel Testimony

Section 6003 of Title 18, United States Code, empowers a United States Attorney, after obtaining the approval of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any designated Assistant Attorney General or Deputy Assistant Attorney General in the Department of Justice (DOJ), to seek a court order to compel testimony of a witness appearing in court proceedings or before the grand jury. Additional information regarding the approval process is set forth in USAM 9-23.130, below, and the Criminal Resource Manual at 720.

9-23.130 – Approval by Assistant Attorney General to Compel Testimony

The Attorney General has designated the Assistant Attorneys General and Deputy Assistant Attorneys General of the Criminal, Antitrust, Civil, Civil Rights, Environmental and Natural Resources, and Tax Divisions to review (and approve or deny) requests for immunity (viz., authorization to seek compulsion orders) in matters assigned to their respective divisions (28 C.F.R. Sec. 0.175), although this approval is still subject to Criminal Division clearance. This authority extends to requests for immunity from administrative agencies under 18 U.S.C. § 6004. This delegation also applies to the power of the Attorney General under 18 U.S.C. § 6005 to apply to the district court to defer the issuance of an order compelling the testimony of a witness in a congressional proceeding.

NOTE: All requests for immunity, including those whose subject matter is assigned to a Division other than the Criminal Division, must be submitted to the Criminal Division, and no approval may be granted unless the Criminal Division indicates that it has no objection to the proposed grant of immunity (28 C.F.R. Sec. 0.175).

Requests for authorization to seek to compel testimony should be processed as described in the Criminal Resource Manual at 720, using the form contained in the Criminal Resource Manual at 721.

[cited in USAM 9-23.110; Criminal Resource Manual 721]

9-23.140 – Authority to Initiate Immunity Requests

Assistant United States Attorneys, with the approval of the United States Attorney or, in his or her absence, a supervisory Assistant United States Attorney, and Department attorneys, with the approval of an appropriate Assistant Attorney General or Deputy Assistant Attorney General of DOJ, may initiate requests to compel testimony under the use immunity statute.

9-23.210 – Decision to Request Immunity—The Public Interest

Section 6003(b) of Title 18, United States Code, authorizes a United States Attorney to request immunity when, in his/her judgment, the testimony or other information that is expected to be obtained from the witness “may be necessary to the public interest.” Some of the factors that should be weighed in making this judgment include:

1. The importance of the investigation or prosecution to effective enforcement of the criminal laws;
2. The value of the person’s testimony or information to the investigation or prosecution;
3. The likelihood of prompt and full compliance with a compulsion order, and the effectiveness of available sanctions if there is no such compliance;
4. The person’s relative culpability in connection with the offense or offenses being investigated or prosecuted, and his or her criminal history;
5. The possibility of successfully prosecuting the person prior to compelling his or her testimony;
6. The likelihood of adverse collateral consequences to the person if he or she testifies under a compulsion order.

These factors are not intended to be all-inclusive or to require a particular decision in a particular case. They are, however, representative of the kinds of factors that should be considered when deciding whether to seek immunity.