The Federal Bureau of Political Investigation
By Judge Andrew Napolitano
TownHall.com
When Hillary Clinton
delivered a campaign post-mortem to her major
supporters in a telephone conference call late last
week, she blamed her loss in the presidential
election on FBI Director James Comey. She should
have blamed the loss on herself. Her refusal to
safeguard state secrets while she was secretary of
state and her failure to grasp the nationwide
resentment toward government by the forgotten folks
in the middle class were far likelier the cause of
her defeat than was Comey.
Yet it is obvious that law enforcement-based
decisions in the past four months were made with an
eye on Election Day, and the officials who made them
evaded the rule of law.
Here is the back story.
The statutory obligation of the FBI is to gather
evidence to aid in the prosecution or prevention of
federal crimes or breaches of national security. The
process of complying with this obligation
necessarily involves making some legal judgments
about the relevance, probity and even lawfulness of
the gathered evidence. These judgments are sometimes
made on the streets in an emergency and sometimes
made after consultation and consensus. But the whole
purpose of this evidence-gathering and
decision-making is to present a package to the
Department of Justice, for which the FBI works, for
its determination about whether or not to seek a
prosecution.
In cases in which subpoenas are needed, the FBI must
work in tandem with the DOJ because subpoenas in
criminal cases can be issued only by grand juries
and only DOJ lawyers can ask grand juries to issue
them. Usually, the FBI and the DOJ work together to
present what they have to a grand jury in order to
build a case for indictment or to induce a grand
jury to issue subpoenas and help them gather more
evidence.
Federal judges become involved when search warrants
or arrest warrants are needed. These are often
emergent situations, as the evidence to be seized or
the person to be arrested might be gone if not
pursued in short order. They require the
presentation of evidence to a judge quickly and in
secret. It is the judge's role to decide whether the
DOJ/FBI team has met the constitutional threshold of
probable cause. Probable cause is met when the
prosecutorial team shows the judge that the evidence
the team seeks from the execution of the warrant
more likely than not will implicate someone in
criminal behavior.
Having issued many search and arrest warrants
myself, I know that judges need to be curious and
skeptical. After all, only one side is appearing
before the judge, and the whole appearance is often
quick, unorthodox and in secret. A healthy curiosity
and skepticism will cause a prudent jurist to ask
whether the grand jury really needs what the search
warrant seeks. If the reply is that there is no
grand jury, most judges will terminate the
application and conclude that it is a fishing
expedition -- or going "sideways," as law
enforcement says -- not a serious criminal
investigation worthy of judicial involvement.
All of this is commanded by law to be kept secret so
as to preserve evidence, avoid tipping off a
potential defendant capable of flight and preserve
the reputation of a person not indicted.
That is at least the way these things are supposed
to work. Yet none of this happened in the recently
reopened and re-terminated investigation of the
misuse of emails containing state secrets by
Clinton.
In that investigation, the DOJ did not present
evidence to a grand jury. Thus, it did not obtain
any subpoenas. And it did not seek any search
warrants. It cut deals left and right, promising not
to prosecute those from whom it sought problematic
evidence. After accumulating a mountain of evidence
of Clinton's guilt, the FBI did not present it to
the DOJ.
Rather, Director Comey held a news conference on
July 5, at which he declared that he and his
colleagues in the FBI -- not the DOJ -- had
concluded that "no reasonable prosecutor" would take
the case; so Clinton would not be prosecuted. He
then proceeded to outline in detail the gathered
evidence (SET ITAL) against (END ITAL) Clinton.
He endured a firestorm of criticism for his public
presentation of the gravity of the evidence in the
case and his unilateral determination of no
prosecution. The firestorm was generated largely by
his own FBI agents who had become convinced of
Clinton's guilt of the failure to safeguard state
secrets (espionage), as well as their collective
belief that someone somewhere had told Comey what to
do.
Then, just 11 days before the 2016 presidential
election, Comey saw a chance to redeem himself with
his critics. He unlawfully announced the unexpected
discovery of a treasure-trove of 650,000 emails that
he and his team had not then examined but that they
thought might affect the decision not to prosecute.
This caused a second firestorm, in which this writer
and others accused Comey of profound violations of
federal law, not the least of which was an assault
on Clinton's right to due process.
Knowing this announcement -- not the resumption of
the investigation but the announcement of it -- was
unlawful, Attorney General Loretta Lynch did nothing
to prevent it.
Clinton began to sink in the polls. Her Republican
opponent, Donald Trump, now the president-elect,
began to gloat and celebrate. Then, two days before
the election, Comey announced that the FBI had
reviewed all 650,000 recently discovered emails in a
week and concluded that none of them affected the
decision not to prosecute Clinton. Shortly
thereafter, a DOJ official announced that the email
investigation was closed -- for a second time.
What have we here?
We have the gross mismanagement of the nation's
premier law enforcement agency. We have a DOJ
uninterested in the truth and willing to shield a
target of a criminal investigation for political
reasons. We have the improper and unlawful
revelation of matters the law quite properly
commands be kept secret.
We have the dangerous injection of the FBI into
elective politics, which can do ruinous harm to the
rule of law.
And we had a candidate who should blame only
herself for the whole controversy.