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Sunday, October 30, 2016

How Hillary Can Block Email Production In Election Eve Controversy

There are reports that Anthony Weiner, the still-married husband of Hillary Clinton adviser Huma Abedin, has produced to the Federal Bureau of Investigation a laptop (and who knows what else) containing a lot of emails. 

[SIDEBAR: Check out my 2013 commentary on Huma Abedin's grace under pressure when Weiner's problems with technology resurfaced.]

There are a lot of known unknowns and even unknown unknowns here. We don't know what's on the laptop or even what's the focus of the particular investigation (there could be more than one) which prompts interest in whatever's on the computer, laptop or other computing device. We don't know the subject or target (that is, any particular person) of the investigation.

[PRIOR ANALYSIS: What are the Justice Department guidelines regarding investigations of active candidates for public office? Read more here.]

But I surmise that Huma Abedin, if interested in helping Hillary Clinton, would have opportunities to at least delay the process. I am not saying the run-out-the-clock strategy would work, and I am taking a politically agnostic view of this topic (so all of you can share an anger at me!). But politics is causing one heck of a rush to judgment. If we were back in colonial times, the chickens would be squawking and the tar would be boiling.

First, there are spousal privileges that can bar both testimony by one spouse against another, and the introduction through testimony of marital communications during the marriage. (For what it's worth, here's a Justice Department memorandum, mostly pertaining to immigration matters such as sham marriages, which discusses the issue and at the very end, lists five ways the privilege can be waived or challenged by the government.) There is no ironclad privilege, and I am sure plenty of people will want (for political reasons) the privileges to be defeated, but my point here is that an objection could be raised and there might be some interesting issues.

Second, I would be wondering whether Weiner was properly authorized to turn over anything as to which his ownership or control cannot be undisputed. Were these objects really his? Were these objects shared possessions? All of these possible hurdles must be overcome.

I believe that even if the facts are overwhelmingly in support of production, each obstacle presents several questions of law and of fact. That means there are hearings, briefs, more briefs and  rearguments. All of that can delay the ultimate resolution. That's because we have due process and Huma will be entitled to her day(s) in court to fight as hard as she wants, whether on her own behalf or as proxy for Hillary Clinton.

The only thing you can be assured of? There will be no quick resolution on this and definitely not before Election Day.

Eric Dixon is a veteran corporate and investigative lawyer whose analysis and keen judgment is relied upon by business and political leaders in sensitive situations. Mr. Dixon is also a co-inventor of blockchain technology improvements which are covered by two allowed and soon-to-be-granted patents. For inquiries, reach out to him at EDixon@NYBusinessCounsel.com.



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