Are Clinton Aides Colluding in Email Case?

Brendan Kirby,

Ex-advisers hire same lawyer, suggesting they want to ensure no one cooperates against Hillary.

Four former aides to Hillary Clinton have retained the same lawyer to represent them in the FBI email investigation, a highly unusual situation that suggests they are colluding in their defenses and trying to make sure everyone has their story straight.

What’s more, the arrangement raises questions about whether the Department of Justice is favoring Clinton by allowing the coordination to occur.

According to Politico, the four have agreed to a joint-defense arrangement with attorney Beth Wilkinson, a former federal prosecutor who is married to ex-“Meet the Press” host David Gregory. The FBI has been investigating whether Clinton violated any laws when she set up a private email server in her home to store government emails, including some that since have been determined to be classified.

gavel_small Are Clinton Aides Colluding in Email Case?

Joseph DiGenova, former U.S. attorney for the District of Columbia, expressed dismay that Wilkinson reportedly has been representing the former aides since at least July of last year without attempts by the Department of Justice to block it.

“I am shocked the department is agreeing to this representation,” he told LifeZette. “And it shows they may not be serious about the investigation. This is a shocking concession by the department.”

DiGenova the issue “is not a close call” and could make it harder for investigators to get the information they are seeking.

“How can one lawyer represent four people who have to be more than witnesses?” he asked. “They are subjects of the investigation. They worked directly with Secretary Clinton … It is inconceivable to me that the Justice Department will accept Miss Wilkinson representing four individuals who are, at a minimum, subjects — subjects — of the investigation.”

The email case, which has dogged Clinton’s campaign for president, took a more serious turn last month after the Justice Department reportedly struck an immunity deal with former Clinton aide Bryan Pagliano.

Wilkinson is representing former Clinton chief of staff Cheryl Mills, former deputy chief of staff Jake Sullivan, Mills deputy Heather Samuelson, and Philippe Reines, who served as Clinton’s spokesman.

By pooling their defense, the aides will be able to share information and coordinate defense strategy. But it could prove harmful if the interests of one or more of them diverge from the others. Andrew McCarthy, a former federal prosecutor with experience trying Mafia and terrorism cases, said such arrangements also sometimes make it harder for lawyers to fairly defend everyone involved.

“It’s almost always the case that it’s in someone’s interest to cooperate with the government … Having a joint-defense arrangement obviously cancels that.”

“It really puts lawyers in an ethical tough spot,” he said. “I doubt it would be allowed at trial … It’s almost always the case that it’s in someone’s interest to cooperate with the government and they give the government the information they want to know. Having a joint-defense arrangement obviously cancels that.”

McCarthy offered the hypothetical example of two defendants represented by the same lawyer. Suppose it is in Defendant A’s interest to cooperate the prosecutors in exchange for a recommendation of lenient punishment but that cooperation would hurt Defendant B. A lawyer could not fairly represent both clients’ interests, he said.

McCarthy said that beyond the ethical questions, a joint-defense agreement also could make it harder for prosecutors to build a case, since they could not negotiate with one defendant without tipping off the others.

“If you are trying to manufacture a story, or at least manage a story, it’s easier if you have one lawyer,” he said.

Defendants also could feel extra pressure not to snitch on their co-defendants, McCarthy said. He said he found that was typical in mob cases he prosecuted as an assistant U.S. attorney in Manhattan. It forces prosecutors and investigators to uncover evidence in some other way, he said.

“It’s something you have to work around,” he said. “As a practical matter, you just won’t talk to people you’d ordinarily talk to.”

Dan Metcalfe, an American University law professor who served as founding director of the Office Information and Privacy at the Department of Justice, told Politico that joint defenses carry risk for the defendants. He said such approaches sometimes mean that if one defendant falls, they all do.

“It shows they think they can coordinate the defense to everyone’s benefit,” he said, adding it was an “optimistic approach.”

When McCarthy prosecuted defendants involved in the first World Trade Center bombing, he successfully moved to disqualify lawyers William Kuntzler and Ronald Kuby in 1994 because they had represented other defendants in the case. It is risky, McCarthy said, because judges are reluctant to deny defendants the attorneys of their choice. And it creates immediate grounds for appeal if the judge denies the motion.

“You’re basically writing the defendants’ appeal,” he said. “Of all the things a prosecutor does, you have to be most aggressive in this.”