October 27, 2016
What Happened to the FBI?
By Andrew P. Napolitano
When FBI Director James Comey announced on July 5 that the Department of
Justice would not seek the indictment of Hillary Clinton for failure to
safeguard state secrets related to her email use while she was secretary
of state, he both jumped the gun and set in motion a series of events
that surely he did not intend. Was his hand forced by the behavior of FBI
agents who wouldn’t take no for an answer? Did he let the FBI become a
political tool?
Here is the back story.
The FBI began investigating the Clinton email scandal in the spring of
2015, when The New York Times revealed Clinton’s use of a private email
address for her official governmental work and the fact that she did not
preserve the emails on State Department servers, contrary to federal law.
After an initial collection of evidence and a round of interviews, agents
and senior managers gathered in the summer of 2015 to discuss how to
proceed. It was obvious to all that a prima-facie case could be made for
espionage, theft of government property and obstruction of justice
charges. The consensus was to proceed with a formal criminal
investigation.
Six months later, the senior FBI agent in charge of that investigation
resigned from the case and retired from the FBI because he felt the case
was going “sideways”; that’s law enforcement jargon for “nowhere by
design.” John Giacalone had been the chief of the New York City,
Philadelphia and Washington, D.C., field offices of the FBI and, at the
time of his “sideways” comment, was the chief of the FBI National
Security Branch.
The reason for the “sideways” comment must have been Giacalone’s
realization that DOJ and FBI senior management had decided that the
investigation would not work in tandem with a federal grand jury. That is
nearly fatal to any government criminal case. In criminal cases, the FBI
and the DOJ cannot issue subpoenas for testimony or for tangible things;
only grand juries can.
Giacalone knew that without a grand jury, the FBI would be toothless, as
it would have no subpoena power. He also knew that without a grand jury,
the FBI would have a hard time persuading any federal judge to issue
search warrants. A judge would perceive the need for search warrants to
be not acute in such a case because to a judge, the absence of a grand
jury can only mean a case is “sideways” and not a serious
investigation.
As the investigation dragged on in secret and Donald Trump simultaneously
began to rise in the Republican presidential primaries, it became more
apparent to Giacalone’s successors that the goal of the FBI was to
exonerate Clinton, not determine whether there was enough evidence to
indict her. In late spring of this year, agents began interviewing the
Clinton inner circle.
When Clinton herself was interviewed on July 2 for only four hours,
during which the interviewers seemed to some in the bureau to lack
aggression, passion and determination some FBI agents privately came to
the same conclusion as their former boss: The case was going
sideways.
A few determined agents were frustrated by Clinton’s professed lack of
memory during her interview and her oblique reference to a recent head
injury she had suffered as the probable cause of that. They sought to
obtain her medical records to verify the gravity of her injury and to
determine whether she had been truthful with them. They prepared the
paperwork to obtain the records, only to have their request denied by
Director Comey himself on July 4.
Then some agents did the unthinkable; they reached out to colleagues in
the intelligence community and asked them to obtain Clinton’s medical
records so they could show them to Comey. We know that the National
Security Agency can access anything that is stored digitally, including
medical records. These communications took place late on July 4.
When Comey learned of these efforts, he headed them off the next morning
with his now infamous news conference, in which he announced that Clinton
would not be indicted because the FBI had determined that her behavior,
though extremely careless, was not reckless, which is the legal standard
in espionage cases. He then proceeded to recount the evidence against
her. He did this, no doubt, to head off the agents who had sought the
Clinton medical records, whom he suspected would leak evidence against
her.
Three months later and just weeks before Clinton will probably be
elected president we have learned that President Barack Obama regularly
communicated with Clinton via her personal email servers about matters
that the White House considered classified. That means that he lied when
he told CBS News that he learned of the Clinton servers when the rest of
us did.
We also learned this week that Andrew McCabe, Giacalone’s successor as
head of the FBI Washington field office and presently the No. 3 person in
the FBI, is married to a woman to whom the Clinton money machine in
Virginia funneled about $675,000 in lawful campaign funds for a failed
2015 run for the Virginia Senate. Comey apparently saw no conflict or
appearance of impropriety in having the person in charge of the Clinton
investigation in such an ethically challenged space.
Why did this case go sideways?
Did President Obama fear being a defense witness at Hillary Clinton’s
criminal trial? Did he so fear being succeeded in office by Donald Trump
that he ordered the FBI to exonerate Clinton, the rule of law be damned?
Did the FBI lose its reputation for fidelity to law, bravery under stress
and integrity at all times?
This is not your grandfather’s FBI or your father’s. It is the Obama
FBI.
http://www.creators.com/read/judge-napolitano
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