Four Hillary aides hire joint defense counsel

Politico yesterday revealed that four of Hillary Clinton’s aides – not including Huma Abedin and Bryan Pagliano – are using the same high-powered, well-connected D.C. lawyer for their counsel as they face likely FBI questioning over their role in the private server/classified email and possible criminal referral.  The group includes chief of staff Cheryl Mills; her deputy chief Jake Sullivan; Heather Samuelson, also on Mills’s staff; and Philippe Reines, who served as Clinton’s spokesman at State.

The lawyer in question, Beth Wilkinson, has served as a high-profile Justice Department prosecutor, in-house general counsel for Fannie Mae following its scandals (for undisclosed but likely substantial compensation), and a partner in two top law firms prior to setting up her own boutique law practice in January of this year.

As Politico notes:

The united front suggests they plan to tell investigators the same story — although legal experts say the joint strategy presents its own risks, should the interests of the four aides begin to diverge as the probe moves ahead. (snip)

Hiring the same attorney allows Clinton’s advisers to have one gatekeeper for most of the DOJ's inquiries — and it likely indicates that they expect to offer substantially similar testimony if they're questioned. Lawyers are barred from simultaneously representing people who may have conflicting interests in an investigation, or who would say something negative or potentially legally harmful about the lawyer’s other clients, experts say, although some such conflicts can be waived by the clients.

Thus, the aides' decision to use a so-called “joint-representation” or “common-defense” strategy suggests the staffers believe they’re in this together and are unlikely to turn on each other.

On the other hand, if one of the aides ends up in criminal jeopardy as part of the probe, choosing a “common-defense” strategy could mean trouble for that staffer, who may need to say something adverse about his or her attorney’s other clients.

“The premise of employing the same counsel is that they believe there is not likely to be a situation where they start pointing a finger at one another to save their own skins — or perhaps at Secretary Clinton,” said Dan Metcalfe, founding director of the DOJ's office of information and privacy. “And there’s a sense that if one of them goes down, they all go down. It shows they think they can coordinate the defense to everyone’s benefit.”

Metcalfe, now a law professor at American University, called it an “optimistic approach”: “They must believe prosecutors don’t have that much.”

It is unclear when the agreement for joint counsel was made.  Senator Grassley quizzed Wilkinson late last year about who is paying her for serving as counsel and was rebuffed on the ground of client confidentiality.  It is clear, however, that Hillary Clinton would be the outside party positioned to benefit from a unified set of answers among her aides, and also in a position to pony up the large sums a lawyer like Wilkinson would charge.  But if and when any differences in responses appear in testimony, the aides will face heightened peril, as their common attorney will face a conflict of interest in whom to protect.

It was necessary for the Department of Justice to grant exemption from conflict-of-interest rules for this arrangement to be legal.  That seems to indicate that the DoJ is not neutral in the case, something Joe DiGenova sees clearly:

DiGenova questioned why the DOJ would greenlight the arrangement in the first place, arguing that it “presents an amazing conflict of interest” and allows for coordination of stories.

 “If it’s a serious case, you don’t run the risk of having all sorts of collusion between people — it’s just not done,” said diGenova. “If the department has accepted that, that tells me they’re walking down the line of not bringing a case, because they’re not serious if they have accepted that arrangement … They’ve thrown in the towel.”

The DOJ declined to comment.

If all goes as Hillary plans, this arrangement will surely benefit her.  But if the FBI has information that the four people do not anticipate and they give conflicting answers, then the arrangement could blow up on her.

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