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Can the FBI be Independent?
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When President Donald Trump appointed Atlanta lawyer Christopher Wray to succeed James Comey as the director of the FBI, my initial reaction was not positive. Wray is a veteran of the Department of Justice and is part of that good-old-boy DOJ network that knows how to protect its own. Indeed, when then-New Jersey Gov. Chris Christie, a former U.S. attorney, needed a good criminal defense lawyer — whose millions in fees were paid by New Jersey taxpayers — he hired Wray.

Christie was never indicted in the Bridgegate scandal, but defense counsel for those who were sought Christie’s cellphone to demonstrate to jurors the governor’s involvement in the plot to shut down lanes near the George Washington Bridge for political retaliation. Christie claimed that he gave his phone to federal prosecutors, but they told the court that they did not have the phone. Where was it? In a safe of the Atlanta law firm that employed Wray.

The FBI director-to-be, sitting in his office in Atlanta, failed to provide evidence he had that he knew a federal court in Newark was seeking. This sordid episode was not dwelled upon during Wray’s confirmation hearings, at the end of which he was confirmed to a 10-year term running the FBI. So Trump’s search for an outsider who would change the Comey-led culture of political justice and run the nation’s premier law enforcement agency according to the rule of law turned up the ultimate insider.

Earlier this week, Wray testified before the Senate Judiciary Committee on the behavior of FBI agents — including the former director and former deputy director — during the criminal investigation of former Secretary of State Hillary Clinton. Wray had to thread a small needle.

On the one hand, the FBI is an investigative entity only. It does not decide whom or what to charge; it merely reports its findings to federal prosecutors in conjunction with their presentation of evidence to grand juries. As such, the FBI is subject to the DOJ prosecutors for whom it works, and the DOJ, of course, works for the president.

On the other hand, because both the DOJ and the FBI are guided by the ethical rules that govern lawyers and by the values of the rule of law implicit in American culture and recognized by the courts, the DOJ enjoys some independence from the president, and the FBI enjoys some independence from the DOJ. Principles such as equal protection under the law and due process of law protect life, liberty and property and trump instructions of the president to the DOJ and instructions of the DOJ to the FBI. Stated differently, the FBI must go where the evidence of crime leads it, and the DOJ must prosecute when the evidence is lawfully sufficient, no matter the subject.


This obviously becomes complex and treacherous when the president is the subject of the FBI’s investigation, because one of the rule-of-law principles is that no one can be the judge or prosecutor in his own case. And it was in that context that Director Wray testified earlier this week. His testimony was largely about the response of the present-day FBI to the political excesses of the Comey-led FBI as articulated in a 568-page report issued by the inspector general of the DOJ.
That report found that there was political bias at the FBI and the DOJ in favor of Clinton while she was the subject of a criminal investigation and that there was political prejudice against Trump at the same time. But it also found that the bias and prejudice were not the deciding factors in the ill-advised decision by Comey to announce that Clinton would not be charged and then to recount all the damning evidence the FBI had amassed against her or in his decision to reopen and then reclose the investigation.

In Wray’s testimony, I detected not a political defense of the FBI but rather a careful assessment of the constitutional relationship between Congress and the FBI that demonstrated a grasp of nuance and a defense of the rule of law.
Wray has been battling the House Intelligence Committee over its demands to get a peek at a portion of special counsel Robert Mueller’s files on the president. The committee has threatened Wray and his boss, Deputy Attorney General Rod Rosenstein, with censure, contempt and even impeachment if Wray fails to deliver the files. Wray’s message to the committee, uttered in his Senate testimony, was that the FBI will follow the law and not surrender privileged information.
A privilege is the ability of the entity that enjoys it to prevent the revelation of information that the privilege covers. The attorney-client and priest-penitent privileges, for example, permit the client or the penitent to prevent the lawyer or the priest from revealing their communications. Wray knows that law enforcement, too, enjoys privileges, such as the obligation to keep matters that have been presented to a grand jury, the thoughts and impressions and strategies of investigators and prosecutors, and information developed from confidential sources secret.

By signaling that he will honor those privileges in the investigation of President Trump, Wray is upholding the rule of law. Were he not to do this, he’d be spilling the contents of a criminal file to the political allies of the subject of the file — a spill that the law would not condone because it would put the president above the law.

In defending these rule-of-law privileges, Director Wray is upholding the independence of the FBI against an unforgiving political onslaught orchestrated by the president’s allies. I hope this is resolved in a court of law and not in the court of public opinion. Public opinion is a reed that moves with the wind. The rule of law is a rock that keeps us free.

Copyright 2018 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Donald Trump, FBI 
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  1. anonymous[340] • Disclaimer says:

    Not what I expected at this point from Mr. Napolitano, who since last November in his columns here at Unz Review has been pumping RussiaGate and cheerleading his St. Mueller. Things are getting pretty… dynamic?

    Mr. Wray is praised for helping to shield the FBI/DOJ from further exposure of their election meddling. But only after the opening three paragraphs summarize his shielding of Mr. Christie from the Establishment’s lawyer class.* Might this be a way to keep Mr. Wray in line? Several other commenters under last week’s column pointed out that the Mueller investigation (now, according to Mr. Napolitano, an investigation of President Trump) could grind along indefinitely, effectively another, extra-Constitutional branch of government mutating as necessary to hammer and hamper whoever it sees fit.

    And Mr. Comey is back in Mr. Napolitano’s crosshairs. Note the effort to distinguish the FBI of the previous administration from today’s: “His testimony was largely about the response of the present-day FBI to the political excesses of the Comey-led FBI as articulated in a 568-page report issued by the inspector general of the DOJ.” This echoes Mr. Napolitano’s time-lining that I commented on several columns back as an apparent effort to leave the dirt at the feet of Mrs. Lynch.

    Reading critically these columns over time is a good way to see by whom we’re ruled, how we’re distracted, and why things never fundamentally change. Individuals may be expendable, but “Judge” will never attack the Establishment itself. The country and as much of the world as practicable are to be ruled from Washington.


    *I had not previously read anything about a potentially incriminating cellphone being hidden away by Mr. Christie’s lawyers while he lied about its whereabouts. If this is so, and was brought out prior to Mr. Wray’s confirmation by the Senate, that makes a nice example of the amoral puppet show that runs nonstop in Washington.

  2. Sophistry.

    In defending these rule-of-law privileges, Director Wray is upholding the independence of the FBI against an unforgiving political onslaught orchestrated by the president’s allies.

    The mob lawyer’s defense of the swamp.

    • Replies: @anonymous
  3. anonymous[340] • Disclaimer says:

    I believe that you, like me, began to perceive Mr. Napolitano as an Establishment propagandist — at least in the RussiaGate and Trump contexts — last November. There really seems to have been a change in his writing at that time. Compare, for example, his column published December 15, 2016, which ends:

    “During the final five weeks of the presidential campaign, WikiLeaks released tens of thousands of DNC and Clinton campaign emails to the public. WikiLeaks denies that its source was the Russian government, yet for the purposes of the DNC and Clinton campaign claims, that is irrelevant because whoever accessed these emails did not alter the operational systems of any of the targets; the accessor just exposed what was found.

    We do not know what data the president-elect examined. Yet in six weeks, he will be the chief intelligence officer of the U.S., and he’ll be able to assimilate data as he wishes and reveal what he wants. He should be given the benefit of the doubt because constitutionally, the intelligence community works for him — not for Congress or the American people.

    Who did the leaking to WikiLeaks? Who had an incentive to defeat Clinton? Whose agents’ safety and lives did she jeopardize when she was extremely careless — as the FBI stated — with many state secrets, including the identity and whereabouts of U.S. intelligence agents and resources?

    The answer is obvious: It was the same intelligence community that cannot agree on the meaning of the raw data it has analyzed.

    Someone leaked the Democrats’ and the Clinton campaign’s private work, and the government has a duty to find the person or entity that did so, even if it was one of the government’s own. Though the truthful revelation of private facts may have altered some voters’ attitudes, there is no evidence that it altered ballot totals. The law guarantees fair elections, not perfect ones.

    Did the Russians hack Hillary Clinton? No. No one did. But some American intelligence agents helped WikiLeaks to expose much dirty laundry.”

    I haven’t read each of his subsequent columns, but nothing since last November explains why Mr. Napolitano would now pretend to buy into the anti-Russian hysteria. Based on his reputation, one would expect him to lay out explicitly what changed his mind. Instead, he’s been peddling the slithery stuff several of us have noted.

    • Replies: @WorkingClass
  4. I get it now. “Public opinion is a reed that moves with the wind. The rule of law is a rock that keeps us free”. How nice. This piece was written tongue in cheek. Wasn’t it?
    The FBI will leak whatever it wants, whenever it wants. Do you really believe grand jury proceedings are secret? Only when it serves the DOJ’s purposes.

  5. @anonymous

    I have always thought Judge Andy was full of shit. Prattling on about the long dead constitution. But I agree. It wasn’t always so easy to know which side he is on. Now there is no doubt. He is a swamp creature. I take a moment to bad mouth the Judge but leave the heavy lifting to you. I hope you keep up the good work.

  6. KenH says:

    I see nappy Napolitano rides again. So Wray probably illegally withheld evidence from federal prosecutors as Cheeseburger Christie’s defense attorney but then Nappy tells us that ultimate insider Wray suddenly went straight and refuses to hand over evidence to Congressional investigators not to obstruct a Congressional investigation, but based on a nuanced and principles understanding of Constitutional law and the separation of powers. So ultimate insider Wray does good.

    I believe the appropriate Congressional committee has the right to request certain things of the DOJ and FBI and they should have met them halfway in good faith. They don’t get to operate in a vacuum and they’ve been a law onto themselves answerable only to themselves for far too long now. This is breeding tyranny.

    The judge fails to point out that it was recently revealed that chosenite Rosenstein was accused of threatening Republican Congressional staffers with subpoenas if they didn’t fork over their records. But we weren’t treated to any essays on the rule of law by the judge probably because he’s rooting for the people going after Trump.

  7. I also have noticed Napoletano’s cleaving to the establishment line lately. The real question is, if you have a sort of gestapo (the term is a German abbreviation which simply means secret state police: geheime Staatspolizei), can the government be independent of such an institution. It seems to me that the real questions are, can we be independent of a gestapo organization, and can the rule of law co-exist with a secret police agency. These have been the big issues presented by the FBI since the J. Edgar Hoover era, which began about 99 years ago when he was a bigwig in the “Bureau of Investigation” during the post-Great War red scare of 1918-20. He developed the FBI along those lines in the 1920s and after and it has been undermining the rule of law since that time, to the extent now that the rule of law no longer really obtains in the yankee imperium.

  8. unit472 says:

    In 1989, a 16 year old girl was murdered by her parents in St. Louis. The Palestinian immigrant parents claimed self defense and the police had no evidence that could say otherwise but the FBI did.

    You see the father had been the subject of a FISA warrant and the FBI had installed a listening device in the home that had recorded conversations therein. The St. Louis police requested access to the FBI recordings. Attorney General Richard Thornburgh decided that the interests of justice for the 16 year old girl outweighed the risks to ‘national security’ and revealed the FBI surveillance. On the recordings was the evidence St. Louis prosecutors needed to prove that the girl had been murdered in an ‘honor killing’ by her parents.

    Now Mueller’s investigation seems corrupt from the get go and was based on fake evidence, phony FISA warrants and biased investigators. If it wasn’t, he and his sidekick, Rod Rosenstein should want to disprove this by releasing the investigational premise and evidence to support those FISA warrants.

    The American people are fed up and not interested in Napalitano’s theories about how many corrupt FBI and DOJ officials can dance to the tune of B. Hussein Obama.

  9. Bubba says:

    LOL! You kill me Judge – I’m still laughing at your pompassity! You never let me down!

    The law, like the good Judge Napolitano, is an ass.

    Millions of Americans have lost their freedom (their life savings) trying to defend themselves from unwarranted charges by “law” enforcers (like Mueller) with unlimited monetary resources. Oh, and who benefits? Those who write and those who enforce & defend “the law” – as they are always in bed with each other making millions. Ryan, Reid, McConnell, et. al.

    Our courts are hopelessly broken for the middle class or any small business owner. Unless you have millions to defend yourself properly with insider lawyers, you are absolutely screwed in America. Your hard earned life savings will vanish to support defense lawyers who are buddies with prosecuting lawyers like Herr Muller. It’s a shell game.

    As I’ve commented before – go F yourself Judge!

  10. Sam McGowan says: • Website

    What “independence?” The Constitution does not allow “independent” Federal agencies. The FBI is the investigate arm of the DOJ – period. Now it has become corrupt. Of course, it’s been corrupt since the days of J. Edgar.

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