Well, I’m sure you’re thinking, “That’s a stunning comment from Naomi! She is very brave to get out there along with the thousands of media figures and legal experts also saying exactly that.”
Yes, and you’re right. This isn’t a novel comment.
Still, there’s been something bugging me about one of Trump’s accusations re Hillary, and it’s a bug I do know something about.
Given the wealth of disclosures about The Horror Of It All, I understand why nobody has demolished this one piece of Trump crapola, but I’m going to do my best.
In yesterday’s NYT article by Peter Baker, Source: Trump Says He Has ‘Complete Power’ to Pardon – The New York Times, Baker does a thorough job in answering a whole series of Trump’s tweeted false accusations about leaks, about the “failing New York Times,” etc etc.
Here’s what Baker wrote about Trump’s tweets re Hillary:
In his tweets on Saturday morning, he offered no concern that Mr. Sessions had not been fully forthcoming. Instead, as he often does, Mr. Trump tried to turn attention back to his opponent from last year.
“So many people are asking why isn’t the A.G. or Special Council looking at the many Hillary Clinton or Comey crimes,” he wrote, referring to Robert S. Mueller III, the special counsel now leading the Russia inquiry. “33,000 e-mails deleted?”
Mrs. Clinton was investigated last year by the F.B.I. for using a private server to route official email. More than 30,000 messages that she and her team deemed personal and unrelated to her service as secretary of state were deleted. As F.B.I. director, Mr. Comey said Mrs. Clinton had acted irresponsibly but that he would not seek criminal charges against her.
Baker should have made clear that Comey’s notorious (and gratuitous) statement about Hillary’s actions did not concern the deleted emails. They concerned the State Department correspondence on the Clinton discrete server. Given Comey’s holier-than-thou pomposity, we can all be sure that those personal emails had not been surreptitiously deleted before or on his watch. Can we all imagine what he would have said about that?!
(A funny little note: if I remember correctly, that server seems to have been the only server potentially containing classified info–both in the U.S. government and campaign offices–not to have been hacked, or stolen from.)
Still, there it is again, Trump suggesting some conspiracy in a dark basement bunker during which Hillary’s emails were deleted. And acid washed, I think he’s said, conflating a computer server with designer jeans.
I’m not a lawyer but during the years I worked for lawyers, I had direct experience with the way discovery in lawsuits proceeds. Assuming this process applied to the FBI investigation of the private server, here’s the way it probably worked:
- First, the FBI would produce an extensive written discovery demand listing in voluminous detail everything the FBI wanted turned over. That demand would go to Hillary’s lawyers.
- Discovery documents are overstated wish lists. A lot of the demands in a discovery demand are boilerplate–copied and pasted in from older documents. They demand everything, including the kitchen sink.
- Hillary’s lawyers would produce a written response to those demands, specifying what material was not in their possession, what demands were overreach and what demands were absurdly “burdensome.”
- Now begin negotiations to compile a viable list of documents that would be turned over. “Negotiations” include discussion, arguments and some more written documents.
- If, say, the FBI vehemently disagreed with the limits the Clinton lawyers were placing on documents–such as stating they needed to review everything on that server to determine which emails were privileged, or private and irrelevant to the investigation–they’d apply to the judge overseeing the investigation.
Now let’s pause here for a moment to ask the question: was there a judge? I didn’t remember reading about one so searched for “judge overseeing FBI email investigataion [sic]” corrected to “investigation.”
Two names came up: U.S. District Judge Emmet G. Sullivan and U.S. Magistrate Judge Kevin Fox. But Judge Sullivan’s role had to do with a peripheral matter involving Judicial Watch, the right-wing organization dedicated to destroying the Clintons by any means, and Judge Fox’s role had to do with the FBI subpoena for Anthony Weiner’s computer, not the Clinton server.
- So it’s reasonable to assume the FBI and the Clinton lawyers agreed upon how turning over the Clinton server and emails would work. And part of that agreement had to have been that the Clinton lawyers would first review everything in the server–maybe in hard copy, maybe not–before turning over the relevant documents, or the server itself.
- If the FBI had not agreed to allowing the Clinton lawyers to review the emails and had gone to a judge, the Clinton lawyers would have insisted that the judge–with a really limited staff–review all the emails herself, in her chambers, and do the laborious work of separating personal from State department-related communications.
- But as far as we know that didn’t happen. Why?
- Because–and here’s a point Trump definitely does not understand–lawyers are officers of the court, defined by Black’s Law Dictionary as “A person who is charged with upholding the law and administering the judicial system. Typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.”
- Hillary Clinton’s lawyers were and are officers of the court. So are the lawyers with the FBI. (So, as a lawyer, is Hillary.)
- As officers of the court–and with the agreement of the FBI’s lawyers–the Clinton lawyers reviewed all the emails and separated out those that were personal. This they did in their office, in broad daylight (or under LCD lights), with the explicit permission and trust of the FBI.
- Let me repeat that: trust. Lawyers on opposing sides will fight over details but once an agreement has been reached they trust each other, because they belong to that unusual group called Officers of the Court, sworn to “obey court rules.”
- The Clinton lawyers then probably compiled a long log of the emails they determined were personal, sketching out things like, “Email to Chelsea about birthday party for granddaughter.”
- And I’ll bet once the FBI lawyers read through the log, they sighed with gratitude and said, “OK, we don’t need to see stuff like that.” They were already facing reviewing–what was it? another 30,000 emails?
I once faced about 30 file boxes full of discovery in a big federal case. I don’t remember whether or how I logged every piece of paper in. That’s how mind-numbing discovery can be.
And I point out once again: whatever went on during the FBI investigation, the FBI trusted the Clinton lawyers to do their part of the job honorably.
There. I’ve said it, and I’m glad and I won’t have to think about it again.
P.S. If any lawyers read this and can correct me, please respond. You know more than I do and I’ll be happy to post your criticism.