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

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.

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