Those Damned Emails

In late August 2015, Ken Eichner had just finished handling a money-laundering sentencing in Miami Federal Court when his phone buzzed; it was a voicemail that would thrust him into one of the biggest stories of 2016.

“The message was from a law firm in Colorado; their client, [Denver-based] Platte River Networks, needed a criminal lawyer,” Eichner says. “I called the CEO of Platte River and he said, ‘The FBI wants all servers associated with The Clinton Foundation.’” 

Yes—those email servers.

“I went straight to Washington D.C. instead of back to Denver,” Eichner says, “and I met with the attorneys at the DOJ that had issued the subpoenas for the servers.”

Three parties spearheaded the Clinton investigation, Eichner says: the DOJ’s National Security Division, the FBI and the U.S. Attorney’s Office in Alexandria. 

“The FBI had their best investigators on it because it was so high-profile,” Eichner says. “The agents were hyper-aggressive in trying to find out if [Clinton] or her immediate staff ordered any deletions. That didn’t really involve Platte River because they’re an IT company. Platte didn’t do anything. We were the help desk. But let’s put on our trial lawyer hats for a minute: If you are the Department of Justice and you can’t get to a higher-up, are you really going to prosecute the help desk guy? Although the answer is most likely ‘No,’ I wanted to avoid that risk.”

Eichner stresses that The Clinton Foundation came to Platte River after Hillary Clinton was secretary of state. “It’s an IT-support company for The Clinton Foundation. They didn’t read emails. It’s like, you call up and go, I can’t find this folder. I’m trying to log on. My family and I are going to go to London—I need my iPhone to work. It’s that type of thing.”

Except the people calling have names like Bill Clinton, Cheryl Mills and Huma Abedin.

Platte cooperated with the FBI, answering questions and handing over documents. “We provided thumb drives of information, consented to interviews,” says Eichner. “I represented the two co-CEOs of Platte River and a handful of employees—conflict waiver signed, of course. We were assured by the FBI that we were not a target or potential defendant.”

Eichner obtained immunity for one of those employees: IT specialist Paul Combetta.

“It became apparent that immunity for Paul Combetta would be necessary to keep the cooperation moving forward efficiently,” Eichner says. “To effectively represent Mr. Combetta, immunity was secured in the event that the case ever went to trial and for further protection against any type of political mission or agenda that might erupt.”

He adds, “Mr. Combetta never deleted any emails at the request of former presidential candidate Clinton.” 

Receiving immunity for his client wasn’t easy. 

“Things were combative. I received a lot of pushback,” Eichner says. “A defense attorney’s job is to make sure, if a client is going to cooperate, that you protect your client against any false statement. We all know that Martha Stewart ultimately wasn’t convicted of insider trading—she was convicted of lying to the FBI in a conference room in a law firm in Manhattan.”

Once Combetta received immunity, Eichner says he and the FBI moved right back into a cooperative mode. “I’m a litigator, so it’s no big deal if there’s a little bit of a combative stage,” he says. “The competence of the FBI was high. I was impressed with [FBI Director James] Comey’s honesty in his report.” 

Even so, after that report was released, two Platte employees—Combetta and IT specialist Bill Thornton—were subpoenaed to a congressional hearing. 

“Congressman [Jason] Chaffetz [R-Utah] announced that he’s seeking a criminal prosecution of all those involved, out of frustration that the FBI and the U.S. Attorney’s office didn’t indict a variety of people,” Eichner says. “Everyone knows the expression ‘Keep the politics out of the law and the law out of politics.’ This was one of those unfortunate instances for all the parties that it was an election year. Congressional committees were using their subpoena power in an obviously partisan way.”

The hearing, in September 2016, was the first Eichner attended. Lawyers, of course, aren’t permitted to speak. 

“That’s like Bruce Springsteen having laryngitis at a concert,” Eichner says. “Watching my clients’ company’s reputation suffer for strictly political reasons, and not for violating any laws, was enormously frustrating. … At multiple congressional hearings Rep. [Elijah] Cummings [D-Md.] said, ‘The playbook is the same at each hearing: make an outrageous charge and false allegation against a company or individual, taint their reputation, refer the case for prosecution, force them to assert the Fifth, and then pretend to be outraged at the hearing when they assert the Fifth, which any sensible defense attorney would advise their client to do.’ I witnessed this firsthand and it was difficult to watch the congressional process make a hot tech company look bad for no reason except for political gain.”

Eichner says the case was ultimately about protecting individual rights. “It doesn’t make any difference if a meeting with government agents involves a run of the mill case or a presidential candidate. It’s a bad idea to speak with the government unless you’ve hammered out immunity or an acceptable deal,” he says. 

And now that the election is over?

“I don’t even know what’s going to happen next,” Eichner says. “There could be additional subpoenas from the congressional committees from a special prosecutor, or they could simply move on. I am really hoping they finally move on.”