The FBI's Labor Day weekend document dump regarding its investigation of Hillary Clinton gives those who thought the result was predetermined much to complain about. The FBI's notes confirm that her former chief of staff, Cheryl Mills, was among the several lawyers representing Clinton in her FBI interview. Mills was hip-deep in the events at the heart of the FBI's criminal investigation and was herself a material witness who had previously sat for her own interview. Yet not only was she allowed by the Department of Justice to participate as counsel in Clinton's interview, her communications with Clinton and other material witnesses also were actively protected by the Department of Justice throughout the criminal and civil investigations.

Typically, the DOJ would look askance where a material witness sought to act as a lawyer for the subject of a federal criminal investigation. In Mills's case, Justice lawyers went out of their way to accommodate this highly unusual dual-hat role. For those who wonder whether Clinton's FBI interview was all for show, Mills's participation as a lawyer should be Exhibit A.

Mills, who was a regular correspondent with Clinton on Clinton's home-brewed email, testified as a fact witness about her personal knowledge of Clinton's email setup in both the FBI investigation and related civil depositions. At the same time, Mills purported to represent Clinton as her lawyer. Mills was not, however, a lawyer for Clinton during her tenure at the State Department. Her title was "Chief of Staff and Counselor." But the "counselor" position was, according to Mills's testimony in one of the many Clinton email FOIA cases, "not a lawyer role"; it was a "policy role." Mills contends that, after leaving the State Department in 2013, she was hired by Clinton as her personal lawyer to coordinate the response to State's demand for return of her emails.



Mills's dual role as fact witness and lawyer posed considerable obstacles to uncovering the truth about Clinton's email scheme. In a civil deposition ordered by a federal judge, Mills frequently invoked the attorney-client privilege to avoid answering questions about Clinton's email setup. When asked about the email setup and in particular conversations that she might have had with Clinton's IT specialist, Bryan Pagliano—who invoked the Fifth Amendment privilege against self-incrimination to avoid testifying—Mills refused to answer, claiming those conversations were privileged attorney-client communication.

Mills's knowledge of facts learned while serving in a non-legal capacity at the State Department could not possibly be protected by an attorney-client privilege. To fix that problem, Mills conveniently claimed that she did not know anything about Clinton's email setup during her tenure at the State Department and only learned of relevant facts in her later capacity as Mrs. Clinton's personal lawyer. Mills's implausible claim she was unaware of the nature of Clinton's email setup during her tenure at State is undermined by documents showing that Mills was deeply involved as chief of staff in resolving questions regarding Clinton's email use. A March 2009 memo addressed to Mills from the assistant secretary for diplomatic security, for instance, advised against Clinton and her staff using BlackBerry devices in the executive suite, known as "Mahogany Row," because it was a secure area. Similarly, an August 2011 email chain addressed "communications issues" flagged by Mills, including a suggestion from State Department IT officials (later rejected by Huma Abedin) regarding the possibility of a State-issued BlackBerry for Clinton.

Even more specious is Mills's assertion that certain facts she became aware of as Clinton's chief of staff—such as why she knew that Clinton had transitioned her email to a clintonemail.com address very early in her tenure—were off-limits because she had "refreshed her recollection" as to those facts during her time representing Clinton in the private sector. Mills could only "refresh" her recollection because she had knowledge of those facts during her tenure as Clinton's chief of staff, putting those facts well beyond the protection of any privilege.

Especially given its criminal investigation into Clinton's email use, the Department of Justice had every reason to challenge an overbroad assertion of attorney-client privilege by a critical fact witness such as Mills. Indeed, Mills's very representation of Clinton in the criminal investigation raises question under both legal ethics standards and federal criminal law. 18 U.S.C. 207(a) makes it a crime for any former government employee to communicate with the government on certain matters "in which the person participated personally and substantially while in government."

Rather than contest Mills's questionable privilege claims, the Justice Department actually supported them. The Washington Post reported that when the FBI interviewers broached the question in her May interview of how the email server was set up, Mills and her lawyer walked out. Clinton and her lawyers had demanded that that topic be off-limits to the FBI because of Mills's more recent role as Clinton's lawyer. The Justice Department apparently agreed. Department lawyers were reportedly taken aback that their FBI colleague had ventured beyond what was anticipated.

The Department of Justice agreement to limit the scope of a criminal interview based on untested claims of attorney-client privilege is, at the very least, unusual. For the more conspiracy minded, it's downright outrageous. Yet it pales in comparison to the conduct of a Department of Justice lawyer in Mills's civil FOIA deposition. On two occasions in that deposition, a lawyer from the Department of Justice's Civil Division, which represents the State Department in the FOIA cases, invoked Mrs. Clinton's personal attorney-client privilege to object to questions about Mills's knowledge of the email setup. When Mills was asked what Pagliano had told her about the setup of the server, a Department of Justice lawyer objected that those conversations had taken place "during the time that [Mills] was representing Secretary Clinton." If such a privilege existed, it certainly was not the place of the Department of Justice to invoke it to protect Mills from testifying.

On the whole, the Department of Justice's accommodating of Cheryl Mills's dual-hat role as lawyer and witness is mystifying, and it raises significant conflict of interest issues for the department. On one hand, DOJ was purportedly investigating Clinton, and perhaps even Mills, for the mishandling of government information, including over 2,000 classified emails. On the other, the same Department of Justice was shielding Mills from accounting for her role in the email scandal. Is it any wonder that the FBI and Department of Justice came to the conclusion that they did?

Shannen W. Coffin, a former senior attorney in the George W. Bush Department of Justice, practices appellate and regulatory litigation in Washington, D.C.