The news that Hillary Clinton’s closest aides have retained well-connected D.C. attorney Beth Wilkinson to represent them in their boss’ email scandal is bad news for those that held out some hope that justice would be done in the case. Instead, their joint hiring of Wilkinson, without objection from the Justice Department, strongly suggests that that Attorney General Loretta Lynch has no intention of pursuing charges against any of them, much less Hillary. The timing and terms of Wilkinson’s hiring have Clinton’s fingerprints all over them, demonstrating once again that when it comes to corruption and pulling strings to escape the consequences, nobody tops the Clintons. 

When reports emerged several weeks ago that Justice had given former Clinton IT aide Brian Pagliano some type of immunity in return for his testimony a number of experienced commentators speculated that a grand jury had been seated in the case. I was more skeptical that things had gone that far, and it seems such doubts were justified. The FBI apparently only intends to interview the Clinton aides, rather than subpoena them before a grand jury. It was in anticipation of these interviews that the group hired Wilkinson. 

Wilkinson’s joint representation would present a huge conflict of interest if the FBI and Justice Department were actually intent on prosecuting this matter. The best tool available to prosecutors going after a joint criminal enterprise (other than uninvolved eyewitnesses or physical evidence) is the testimony of one suspect against another. This is obtained by interviewing the suspects in isolation, and perhaps misleading them as to the status of the investigation and who has “dropped a dime” on the others. In the Clinton case such a tactic is now impossible, since all of Clinton’s aides will be represented by the same attorney, allowing them to create a joint narrative, and preventing investigators from keeping any of the aides in the dark about what the others may have said. Experienced former federal prosecutor Joseph DiGenova (who a few weeks ago was among those confident a grand jury had been convened) now opines that in accepting this arrangement, Justice has essentially “thrown in the towel.”

Clinton’s fingerprints are all over this arrangement, most notably in the selection of Wilkinson and the terms of her engagement.  Wilkinson left a comfortable sinecure at a prominent D.C. area law firm in January which likely guaranteed a steady seven figure income to open up an independent “boutique” white collar defense shop of her own. This is unusual -- why take such a risk other than for a major political and professional payback from the likely next president? More damning, in terms of demonstrating that this is Cliintonesque maneuvering, is Wilkinson’s strange announcement that the new firm will handle her presumably well-healed clients on a fixed fee basis. 

Fixed fees are common enough in the down and dirty world of blue-collar defense work, but not in the rarified office space of the white-collar defense lawyer, who makes his or her substantial nut by charging deep pocketed clients hour by expensive hour. The average criminal defendant can’t afford uncapped defense fees, and so to attract clients your ordinary small town or big city criminal lawyer takes a gamble and fixes fees at a set rate, hoping that over the long haul that they will profit by not putting too much time into any one case. Thus, lawyers who operate with fixed fees usually are small shops or sole practitioners who run a volume business, since only high volume reduces the risks of wasting too much time on a difficult and unprofitable client. Almost any of these attorneys would give their right arm for a job like Wilkinson just gave up.  

That doesn’t seem to be the kind of business that a highly credentialed lawyer like Wilkinson would want to run, does it?  In fact, on opening her new shop, Wilkinson bragged about her existing list of big name clients (other than the Clinton aides) such as Pfizer, Medtronic, and the NFL. These are corporations that do not need and are unused to paying fixed fees.   

So what’s the angle?  Well, the fixed fee lawyer doesn’t have to account for her hours, whereas with clients on an hourly fee, even with a large retainer, time has to be meticulously kept. At good firms, like the one Wilkinson left, most likely even on those few cases that fixed fees are occasionally taken, lawyers are required to document their hours, so that (should a client demand it) the firm can demonstrate that the fee was fair, and also so that the firm can keep track up what the its lawyers are up to. 

On her own though, Wilkinson can chose to run her fixed fee cases (like those of Hillary’s aides) without keeping detailed records of what she’s actually been doing with her time. Thus, in the event there are future accusations of conflict of interest, these would be much harder to prove without detailed accounts of Wilkinson’s activities, which she will probably (and deliberately) not have. Yet more suspicious for longtime Clinton observers is the knowledge that Clinton herself is well aware of the troubles a lawyer can run into when required to keep detailed records of their activities. Remember Hillary’s own billing records from the Rose Law Firm, which she did her utmost to conceal, almost undid her (and her husband’s presidency) during the Whitewater scandal. Hillary more than anyone knows the dangers of hourly fee records. And since Hillary, or a Clinton connected organization is likely paying Wilkinson -- and since Hillary is in effect Wilkinson’s real client -- the fixed fee arrangement was probably part of the deal. 

It seems that FBI Director James Comey is either content with Justice’s action, or is keeping mum about it. Comey is widely hailed as a stand-up guy, and he had past dealings with Hillary Clinton during the Whitewater scandal when he worked as deputy special counsel to the Whitewater committee. Comey believed Clinton engaged in wrongdoing, but nothing came of it, except a critical investigative report. He parlayed that Whitewater gig into a highly successful Washington career, while maintaining a reputation for integrity. At this point it appears Comey has two choices. He can issue a strongly worded but legally meaningless report ala Whitewater, or resign.  I’m not betting on the latter.