SOURCE ALERT: Lawyers, Ghosts, and Mr. Comey

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University of Miami School of Law Professor Stanley Langbein opines on FBI Director James Comey and the Clinton email kerfuffle. Langbein teaches courses in banking law and regulations, secured transactions, negotiable instruments, Federal income taxation, and international taxation. He was an attorney/adviser in the Office of International Tax Counsel of the Treasury Department. He is the author of "Federal Income Taxation of Bank and Financial Institutions" and is currently working on a new treatise, "Federal Regulation of Banking Organizations," to be published by Civic Research Institute/Delta Hedge in 2017.

Stanley Langbein

They say that prosecutors do not like to indict lawyers. Too messy, with that privilege and all that.

FBI Director James Comey is a lawyer. Since July, and even before Halloween, he had a lot of explaining to do about his decision not to indict former Secretary of State Hillary Clinton. Much of it had to with lawyers. He has had lawyers on his mind.

Jason Chaffetz is a congressman from Utah. He is the Chair of the House Committee on Oversight and Government Operations. He grilled the FBI Director at a hearing in September. The FBI Director had said that the former Secretary lacked "intent" to disclose classified information. Did individuals without security clearances set up and run the server? Yes, said the Director. But there was no reason she should expect that persons maintaining the server would be reading the e-mails sent over the server. Good enough answer.

But didn't she show the e-mails to her lawyer, the Chair asked? Yes, of course. Did they have security clearances? No. But there could have been classified information in the e-mails shown to the lawyers. Did the lawyers read the e-mails? The Director did not know for a fact. But the Secretary must have "intended" that uncleared lawyers would see classified information. But they are subject to the attorney-client privilege, so their information from any e-mails would be "privileged." That is still not the same as having a clearance. Still, there's a good point there: what is a client/investigation target supposed to do in these circumstances, not show her lawyers the potentially-classified documents in order to respond to charges or potential charges? Precluding her doing so would surely threaten her sixth amendment right to counsel. A point that needs to be addressed legally, in the future and probably soon.

The Director had other issues involving lawyers. Clinton attorney Cheryl Mills was allowed to accompany the Secretary during the latter's "voluntary" interview by the Bureau. Mills was acting as "part of the Secretary's legal team." But Mills also received partial immunity (of some sort). You only receive immunity in exchange for evidence, testimonial or documentary, and if you have evidence, you are a witness. But a lawyer cannot represent a client in a proceeding in which the lawyer is also a witness, that is a prohibited conflict of interest. Why didn't the FBI object to Mills' attendance at the interview?

Well, it was a voluntary interview, and the FBI has no power to prevent the interviewee from bringing anyone as counsel to a voluntary interview. True, but then, the FBI is not forced to make the interview voluntary. You could have subpoenaed the interviewee, and then you could object to the attendance of a conflicted attorney at the questioning. But, oh, wait, that would have required convening a grand jury to issue the subpoena, and no one wanted a grand jury convened.

Anyway, the Director said, he did not like to get into matters involving lawyers. In fact, at numerous hearings, the Director seemed preoccupied, even haunted, by the notion of dealing with lawyers in the criminal process. Getting a grand jury subpoena for a lawyer takes a long time. And inquiries involving lawyers are messy, with that attorney-client privilege thing. 

Then, on Halloween, a ghost from the past emerged as the FBI posted on a website the records of its 2001 investigation of President Clinton's pardon of Marc Rich, a former hedge-fund manager who was indicted on multiple counts of tax evasion, wire fraud, and racketeering. Director Comey conducted that investigation as U.S. Attorney for the Southern District of New York. He had supervised the original prosecution as an Assistant U.S. Attorney in that Office. And that case had been as much about lawyers as it was about taxes, trading with the enemy or oil. In fact, the same law firm involved in the e-mail investigation originally represented Rich in connection with the criminal proceeding – a fact little noticed in the record of the investigation, as it was little noted in the 1,500 pages of congressional testimony the self-same House Oversight and Government Reform Committee compiled on the matter.

And Comey was not all that done with the Rich proceeding, even when his 2001 investigation ended. The pardon was based on a theory which had been brought to the attention of the U.S. Attorney – and of Comey himself – by a group of lawyers hired by Rich to replace his original lawyers. That group was spearheaded by I. Lewis Libby, who by 2001 was chief of staff to Vice President Richard Cheney. In 2005, Comey would designate another veteran of the New York Office as a special prosecutor to look into the allegedly criminal disclosure of the identity of a CIA informant by high-level officials of the Bush Administration. Ultimately, that investigation led to only one prosecution, with one conviction – of Libby for perjury. Could Comey (and his appointed prosecutor) have had some vested interest in seeing Libby branded a perjurer? Did he know something about that original prosecution Comey maybe did not want to become a matter of public record? Who knows?

Anyway, nobody noticed the Halloween post at first, until the next day when the FBI issued a tweet on an apparently little-used feed. By the next night CNN, sarcastically called with supposed justification the "Clinton News Network," was reporting the matter with a bit of emphasis, while the Clinton campaign had publicly objected to the posting. Fox News, not ordinarily Clinton-friendly, said nothing about it. Fox spent much of the evening ranting endlessly about Donna Brazile and the question-feeding matter "revealed" by WikiLeaks, and calling for an investigation of CNN. Could there be a bit of tit-for-tat here? If there is, could both outlets have knowledge of some things they are not reporting?

CONTACT: Catharine Skipp at 305-773-5801 or cskipp@law.miami.edu