The FBI's Labor Day weekend document dump regarding its investigation of Hillary Clinton gives those who thought the result was predetermined much to complain about. The FBI's notes confirm that her former chief of staff, Cheryl Mills, was among the several lawyers representing Clinton in her FBI interview. Mills was hip-deep in the events at the heart of the FBI's criminal investigation and was herself a material witness who had previously sat for her own interview. Yet not only was she allowed by the Department of Justice to participate as counsel in Clinton's interview, her communications with Clinton and other material witnesses also were actively protected by the Department of Justice throughout the criminal and civil investigations. Typically, the DOJ would look askance where a material witness sought to act as a lawyer for the subject of a federal criminal investigation. In Mills's case, Justice lawyers went out of their way to accommodate this highly unusual dual-hat role. For those who wonder whether Clinton's FBI interview was all for show, Mills's participation as a lawyer should be Exhibit A. Mills, who was a regular correspondent with Clinton on Clinton's home-brewed email, testified as a fact witness about her personal knowledge of Clinton's email setup in both the FBI investigation and related civil depositions. At the same time, Mills purported to represent Clinton as her lawyer. Mills was not, however, a lawyer for Clinton during her tenure at the State Department. Her title was "Chief of Staff and Counselor." But the "counselor" position was, according to Mills's testimony in one of the many Clinton email FOIA cases, "not a lawyer role"; it was a "policy role." Mills contends that, after leaving the State Department in 2013, she was hired by Clinton as her personal lawyer to coordinate the response to State's demand for return of her emails.
Mills's dual role as fact witness and lawyer posed considerable obstacles to uncovering the truth about Clinton's email scheme. In a civil deposition ordered by a federal judge, Mills frequently invoked the attorney-client privilege to avoid answering questions about Clinton's email setup. When asked about the email setup and in particular conversations that she might have had with Clinton's IT specialist, Bryan Pagliano—who invoked the Fifth Amendment privilege against self-incrimination to avoid testifying—Mills refused to answer, claiming those conversations were privileged attorney-client communication.
Mills's knowledge of facts learned while serving in a non-legal capacity at the State Department could not possibly be protected by an attorney-client privilege. To fix that problem, Mills conveniently claimed that she did not know anything about Clinton's email setup during her tenure at the State Department and only learned of relevant facts in her later capacity as Mrs. Clinton's personal lawyer. Mills's implausible claim she was unaware of the nature of Clinton's email setup during her tenure at State is undermined by documents showing that Mills was deeply involved as chief of staff in resolving questions regarding Clinton's email use. A March 2009 memo addressed to Mills from the assistant secretary for diplomatic security, for instance, advised against Clinton and her staff using BlackBerry devices in the executive suite, known as "Mahogany Row," because it was a secure area. Similarly, an August 2011 email chain addressed "communications issues" flagged by Mills, including a suggestion from State Department IT officials (later rejected by Huma Abedin) regarding the possibility of a State-issued BlackBerry for Clinton.
Even more specious is Mills's assertion that certain facts she became aware of as Clinton's chief of staff—such as why she knew that Clinton had transitioned her email to a clintonemail.com address very early in her tenure—were off-limits because she had "refreshed her recollection" as to those facts during her time representing Clinton in the private sector. Mills could only "refresh" her recollection because she had knowledge of those facts during her tenure as Clinton's chief of staff, putting those facts well beyond the protection of any privilege.
And all of this was just fine with the post-American Justice Department.