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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.

Copyright 2016 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: 2016 Election, FBI, Hillary Clinton 
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  1. Why doesn’t this idiot just tell the truth? Comey and Lynch have connections to the Clintons. This clown has spent too much time around Bill O’Reilly’s anus in the Fox News toilet.

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  2. MEexpert says:

    Judge is missing the point. This was not a classical criminal case. The whole system is politically rigged. I worked for aerospace companies for 35 years and had security clearance. I was given a refresher course every year on how to safeguard the classified information. All classified information was to be shared only on need to know basis. Had I done what Mrs. Clinton did, I would have been fired, fined, and/or jailed. No one needed to prove intent. Director Comey had no choice but to do what he did. Attorney General Lynch deferred the case to him to decide while she chatted about “golf and grand children” with Bill Clinton on an airplane. Director Comey’s mistake was not to recommend prosecution in light of such overwhelming evidence. Having made one mistake he tried to rectify it by making another one.

    The fault lies with the White House and the Attorney General’s office. But none of this had anything to do with Mrs. Clinton’s loss. Only she and her media accomplices are responsible for that.

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  3. eD says:

    This is one of those things where we will have to wait several decades for the truth to come out.

    Unless Trump replaces Comey and the new FBI direct launches his own investigation into the matter, or lets the IG -does the FBI even have an IG?- investigate.

    The investigation itself is perfectly understandable. Mishandling classified information is normally a serious matter with the federal government. Stopping the investigation so as not to embarrass a VIP also probably happens more than we would like to think. And if a candidate for high office is being investigated, there are valid arguments for and against keeping things under wraps until after the election, though if it were me I would always try to indict in time for the affected political party to be able to come up with a replacement candidate (the Democrats would have been better off running Kaine anyway).

    However, the strange thing in this case is the trying to have it both ways, investigating, then not investigating, then investigating, then not investigating, and making a big public spectacle of it. That is not how law enforcement usually operates, if only because this behavior is completely pointless.

    The FBI and/ or DOJ could have also approached the Clintons and their lawyers and tried to negotiate a withdrawal from the campaign. Its not unheard of when the FBI investigates pols for the resignation of the pol from whatever office he/ she holds to be part of the plea bargain process. Maybe they tried to do this. Maybe this is what Bill Clinton and Lynch discussed.

    I will make a wild guess here and speculate that there was in fact an attempt to negotiate with the Clintons a withdrawal from the campaign, and they strung things along, and the two announcements were attempts to put pressure on the Clintons and move them closer to a deal. At the last moment they agreed to not try to hard to steal the election, which had been their original plan.

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  4. After accumulating a mountain of evidence of Clinton’s guilt, the FBI did not present it to the DOJ.

    Is this true? I had thought that going to the people was an end run around a corrupt AG. What would have happened if the FBI had presented it’s evidence to the DOJ? Not what should have happened. What would have happened?

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  5. CK says:

    Comey was appointed for a ten year term in 2013. 7 years to go if he decides to stay.
    He is not fireable but he is impeachable.

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  6. “Comey was appointed for a ten year term in 2013. 7 years to go if he decides to stay.
    He is not fireable but he is impeachable.”

    He is also indictable on charges of conspiracy to pervert the course of justice.

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    • Replies: @Herodotus
    Re: Bill Jones said Comey cannot be fired for 10 years.

    This is incorrect. Comey's appointment has by law a term limit of 10 years not a guarantee for ten years. Courts have ruled on many occasions that an appointee of the Executive Branch may be fired "at will" by the President even if Congress tried to insert language that firing may be done only for "good cause."
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  7. Herodotus says:
    @Bill Jones
    "Comey was appointed for a ten year term in 2013. 7 years to go if he decides to stay.
    He is not fireable but he is impeachable."

    He is also indictable on charges of conspiracy to pervert the course of justice.

    Re: Bill Jones said Comey cannot be fired for 10 years.

    This is incorrect. Comey’s appointment has by law a term limit of 10 years not a guarantee for ten years. Courts have ruled on many occasions that an appointee of the Executive Branch may be fired “at will” by the President even if Congress tried to insert language that firing may be done only for “good cause.”

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    • Replies: @Bill Jones
    I didn't say that.

    if you look, that comment is in quotes.
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  8. @Herodotus
    Re: Bill Jones said Comey cannot be fired for 10 years.

    This is incorrect. Comey's appointment has by law a term limit of 10 years not a guarantee for ten years. Courts have ruled on many occasions that an appointee of the Executive Branch may be fired "at will" by the President even if Congress tried to insert language that firing may be done only for "good cause."

    I didn’t say that.

    if you look, that comment is in quotes.

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