The ACLJ has just obtained previously unreleased documents related to the Clinton investigation and immunity agreements given to top Clinton aides. These agreements reveal that James Comey’s Federal Bureau of Investigation (FBI) and Loretta Lynch’s Department of Justice (DOJ) granted immunity to Hillary Clinton’s aides and lawyers, Cheryl Mills and Heather Samuelson, from prosecution for anything found on their laptops violating multiple felony criminal statutes governing the mishandling of classified information and/or the removal or destruction of records, including Espionage Act provisions. Further, the DOJ and FBI also agreed to evade the statutory requirements of the Freedom of Information Act (FOIA) by purporting to deem the contents of the laptops as not under DOJ or FBI “custody or control.”
These laptops were critical to any meaningful investigation of Hillary Clinton’s handling of classified emails and records. According to the DOJ Inspector General, who identified these as the “culling laptops,” “[a]ll 62,320 emails pulled from the Clinton servers were stored at one time on these laptops.” Having taken control of these laptops, agreeing to severely limit its searches, agreeing to unlawfully shield the laptops from FOIA, then agreeing to dispose of the laptops, it appears the Comey FBI and Lynch DOJ did everything in their power to protect Clinton’s senior aides and lawyers from both criminal liability and public scrutiny.
While these immunity agreements and related news have been publicly discussed to some extent, the ACLJ has now obtained the actual documents so the public may see and judge them accordingly.
At the ACLJ we have been busy litigating multiple FOIA lawsuits against the Deep State and Obama-era holdovers in various agencies in Washington, D.C., including the DOJ and FBI.
In one of those FOIA lawsuits, the ACLJ took the DOJ and FBI to court to force production of various records surrounding former FBI Director James Comey’s sham investigation of Hillary Clinton’s use of private email servers and mishandling of classified information. After months of litigation, the ACLJ’s diligence and persistence is paying off.
ACLJ Obtains the Immunity Agreements
The ACLJ has obtained the DOJ’s infamous immunity agreements with Hillary Clinton’s top aides Cheryl Mills and Heather Samuelson – documents previously unreleased to the public and which include the DOJ attempting to enter an agreement not to comply with the requirements of FOIA, and which confirm it agreed to “dispose” of evidence, including Mills’ and Samuelson’s “culling laptops” which contained all of the missing emails from Hilary Clinton’s private homebrew server.
These documents were directly responsive to a FOIA request the ACLJ had submitted to the DOJ and FBI nearly two years ago, and we were forced to file a federal lawsuit in Washington, D.C., to get them. Our FOIA request sought:
All records concerning the immunity agreements entered into between the Department of Justice (DOJ) and witnesses and/or subjects of the FBI’s Clinton investigation, including but not limited to Cheryl Mills and Heather Samuelson, and all other such agreements whereby the DOJ agreed to destroy any records retrieved.
Forced to comply under the court’s supervision in our lawsuit, the DOJ produced to the ACLJ a set of records which the FBI had sent to the DOJ “for processing and direct response to you [the ACLJ].” These records consisted of the immunity agreements reached between the DOJ National Security Division (NSD) and both Cheryl Mills and Heather Samuelson.
The Content of the Immunity Agreements
According to the DOJ’s immunity agreement with Mills:
As we have advised you, we consider Cheryl Mills to be a witness based on the information gathered to date in this investigation. We understand that Cheryl Mills is willing to voluntarily provide the Mills Laptop to the Federal Bureau of Investigation, if the United States agrees not to use any information directly obtained from the Mills Laptop in any prosecution of Cheryl Mills for the mishandling of classified information and/or the removal or destruction of records as described below.
And, according to the immunity agreement:
To that end, it is hereby agreed as follows:
- That, subject to the terms of consent set forth in a separate letter to the Department of Justice dated June 10, 2016, Cheryl Mills will voluntarily produce the Mills Laptop to the Federal Bureau of Investigation for its review and analysis.
- That no information directly obtained from the Mills Laptop will be used against your client in any prosecution under 18 U.S.C. § 793(e) and/or (f); 18 U.S.C. § 1924; and/or 18 U.S.C. § 2071.
- That no other promises, agreements, or understandings exist between the parties except as set forth in this agreement, and no modification of this agreement shall have effect unless executed in writing by the parties.
The agreement was then executed by Cheryl Mills. The immunity agreement with Samuelson reads the same.
Mills and Samuelson Were Granted Immunity From Prosecution Under Multiple Felony Statutes for Anything Found on Their Laptops.
The Espionage Act. The first criminal statute as to which Mills and Samuelson were expressly granted immunity are felony provisions of the Espionage Act, found at 18 U.S.C. § 793(e). The immunity agreements arguably would also cover the Espionage Act’s provision concerning conspiracy to violate the Act, under 18 U.S.C. § 793(g).
To summarize, these Espionage Act sections makes it a felony for a person with unauthorized access or possession to convey the information to an unauthorized person, or for a person with authorized possession to negligently allow it to be removed from its proper place, delivered to anyone in violation of his trust, lost, stolen, or destroyed; or failing to promptly report such an act.
Removal of Classified Information by Public Officers and Employees. The next criminal statute as to which Mills and Samuelson were granted immunity is a felony statute found at 18 U.S.C. § 1924.
To summarize, this criminal statute makes it a felony for a government officer or employee to, knowingly and without authority, remove classified information with the intent to retain the information at an unauthorized location.
Records and Reports. Mills and Samuelson were also granted express immunity from prosecution under both subsections of 18 U.S.C. § 2071.
To summarize, this criminal statute makes it a felony for a person to willfully and unlawfully conceal, remove, or destroy a government record or document, or where someone has custody of any such record, they willfully and unlawfully conceal, remove, falsify or destroy it. Further, a person convicted of doing the latter “shall forfeit and be disqualified from holding any office under the United States.”
The ACLJ Obtained the Second Immunity Agreement Letters Originally Withheld, Which Show the DOJ/FBI Agreed to Evade FOIA and to Dispose of the Culling Laptops.
Importantly, in item #1 of both the Mills and Samuelson immunity agreements obtained by the ACLJ earlier this year, the DOJ NSD referenced and incorporated the terms of a “separate letter” of the same date (June 10, 2016) containing the “terms of consent” to which the FBI/DOJ agreed to comply. These second letters were not initially provided to the ACLJ.
These two separate letters walk through the specific terms of Mills’ and Samuelson’s agreements with the DOJ in exchange for them voluntarily handing over their culling laptops – the laptops they used to delete Hillary’s emails and on which the Clinton Team used BleachBit.
The DOJ/FBI Expressly Attempted to Evade FOIA’s Requirements.
In these letters, we learn that the DOJ attempted to circumvent its statutory obligation to comply with the FOIA:
In voluntarily providing the Device, Cheryl Mills does not relinquish ownership or control over the Device, except for the FBI’s limited investigative use as specified by this agreement. The FBI does not assert custody and control over the Device or its contents for any other purpose, including any requests made pursuant to the Freedom of Information Act, 5 U.S.C. § 552.
The terms “custody and control” is a FOIA term of art. So, in other words, the DOJ/FBI purported or attempted to agree itself out of the requirements of FOIA, so that nothing on Mills’ or Samuelson’s culling laptops would be subject to FOIA. This agreement is particularly noteworthy given what former FBI lawyer Lisa Page told the DOJ Office of Inspector General:
[T]hese are the State Department’s records. And if the Secretary in the first place had actually followed normal protocol, every single one of these emails, whether personal or work-related would have been in the State Department’s possession, and there would be no attorney-client discussions happening with respect to the sort of this material.
In other words, the DOJ voluntarily agreed to refuse to comply with the requirements of FOIA as to documents that were clearly within the purview of FOIA requests and had otherwise been prevented from being FOIA’d by being stored on Clinton’s private server.
This attempt to evade complying with the FOIA is especially troubling given the next fact revealed in these newly obtained documents.
The DOJ/FBI Agreed to “Dispose” of Mills’ and Samuelson’s “Culling Laptops.”
The DOJ agreed that the FBI would “dispose” of Mills’ and Samuelson’s laptops after the search. According to the agreement:
As soon as the investigation is completed, and to the extent consistent with all FBI policies and applicable laws, including the Federal Records Act, the FBI will dispose of the Device and any printed or electronic materials resulting from your search.
In other words, after agreeing to limit its search of Mills’ laptop to (1) only a certain method of searching; (2) only for certain email-related files; and, (3) only files created within a certain time-frame, the DOJ/FBI agreed to dispose of the laptop – meaning anything else embarrassing, negative or potentially implicating on the laptop – including official State Department records – would be destroyed and never be exposed.
The DOJ Inspector General had discussed the disposal agreement in his report about the irregularities in fired-FBI Director Jim Comey’s investigation of Hillary Clinton, but now the ACLJ has obtained the actual letters confirming the DOJ agreed the laptops would be disposed of by Comey’s FBI.
According to the DOJ OIG, access to these “culling laptops” – the ones on which the Clinton Team used “BleachBit”:
was particularly important to ensure the completeness of the investigation. All 62,320 emails pulled from the Clinton servers were stored at one time on these laptops, so access to the laptops offered the possibility of reconstructing a large number of the deleted emails through digital forensics.
These documents are especially relevant given “the thousands of pages of testimony” released by congressional committees in the past few months “about how the bureau handled the probe into Clinton’s use of a private server to send classified government emails” – and the headlines that testimony is generating. Portions of that testimony reveal “the intricate role of the DOJ in attempting to limit the FBI’s ability to gain access to laptops belonging to two Clinton confidants Cheryl Mills and Heather Samuelson.”
The documents received by the ACLJ confirm our earlier report – more than a year ago – that, based on the Senate Judiciary Committee’s investigation and interviews:
[T]he DOJ entered into “highly unusual” immunity agreements with key witnesses in the investigation, including Cheryl Mills (Clinton’s top aide) and Heather Samuelson (the aide tasked with going through the Clinton emails and deciding which should be made public and which deleted). It is reported that Mills and Samuelson agreed to allow the agency access to their computers in exchange for immunity – i.e. DOJ’s assurances that the findings of those searches would not be used against them.
Context of Related ACLJ FOIA Litigation on Comey/Lynch’s Sham HRC Investigation
It was in this same lawsuit that the ACLJ sought and succeeded in obtaining the release of multiple records showing Comey’s various draft exoneration statements prepared weeks before the FBI had even interviewed Hillary Clinton or Mills and Samuelson. As the ACLJ reported, “The bombshell document – entitled on the FBI’s records Vault as “Drafts of Director Comey’s July 5, 2016 Statement Regarding Email Server Investigation” – is a completely redacted draft copy of fired FBI Director James Comey’s statement exonerating Hillary Clinton from criminal liability.”
And it was this same lawsuit in which the ACLJ uncovered FBI records revealing that the FBI had lost the chain of custody of one of Clinton’s email servers, and that the “original chain of custody” was missing for two months. As we had explained, “The chain of custody in a criminal investigation is critical. It ensures there is no tampering with the evidence. But for two months no one knows where this server was or how it was secured.”
Also, the ACLJ was at the forefront of exposing the attempted coverup that followed then-Attorney General Lorretta Lynch’s secret meeting with Bill Clinton on the tarmac of an Arizona airport just days before Hillary Clinton was interviewed by the FBI – and then exonerated shortly thereafter. After Comey’s FBI replied to our legal demands that “No records responsive to your request were located,” the DOJ produced records to us containing email communication with the FBI – a.k.a. FBI records. The ACLJ, and the public attention these developments received, forced the FBI to reopen the case and admit that “records potentially responsive to your request may exist.”
As an editorial in The Washington Times put it, Lynch “plunged her department and the White House into a panic when a local reporter got wind of the meeting. We finally know a bit more about it, thanks to a Freedom of Information Act lawsuit pursued by the American Center for Law and Justice.”
Among the records the ACLJ obtained were redacted talking points the DOJ had shared with the FBI about the secret tarmac meeting. In fact, the ACLJ recently filed its opening brief in our appeal to the U.S. Court of Appeals for the D.C. Circuit challenging the redaction of those talking points. Right before its response brief was due, the FBI caved and provided us with the talking points it had previously withheld.
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