9/8/2016 -
Judge Andrew Napolitano Townhall.com
On Sept. 2, the FBI released a lengthy explanation of its
investigation of Hillary Clinton and a summary of the evidence amassed against
her. It also released a summary of Clinton's July FBI interrogation.
The interrogation was in some respects standard and in others very
troubling. It was standard in that she was confronted with emails she had sent
or received and was asked whether she recalled them, and her judgment about
them was challenged. The FBI was looking for gross negligence in her behavior
about securing state secrets.
The failure to secure state secrets that have been entrusted to one
for safekeeping is known as espionage, and espionage is the rare federal crime
that does not require prosecutors to prove the defendant's intent. They need
only prove the defendant's gross negligence.
At one point during the interrogation, FBI agents attempted to
trick her, as the law permits them to do. Before the interrogation began,
agents took the hard copy of an innocuous email Clinton had sent to an aide and
marked it "secret." Then, at her interrogation, they asked Clinton
whether she recognized the email and its contents. She said she did not
recognize it, but she questioned the "secret" denomination and
pointed out to the agents that nothing remotely secret was in the email.
By examining the contents of the email to see whether it contained
state secrets, which it clearly did not, Clinton demonstrated an awareness of
the law -- namely, that it is the contents of a document or email that cause it
to be protected by federal secrecy statutes, not the denomination put on it by
the sender.
This added to the case against her because she later told the FBI
that she had never paid attention to whether a document contained state secrets
or not. In the strange world of espionage prosecution, this denial of intent is
an admission of guilt, as it is profoundly the job of the secretary of state to
recognize state secrets and to keep them in their secure government-protected
venues, and the grossly negligent failure to do so is criminal.
The FBI notes of the interrogation recount that Clinton professed
serious memory lapses 39 times. She also professed ignorance over what
"C" means in the margin of a government document. "C" in
the margin means "confidential," which is one of the three levels of
federal state secrets. The other two levels are "secret" and
"top secret." Under federal law, Clinton was required to keep in
secure government venues all documents in those three categories. The FBI found
that she had failed to do so hundreds of times.
By denying that she had paid attention to notes in margins
designating the presence of secrets, by denying that she recognized a secret
when she saw one and by denying that the location of planned drone strikes is
secret (an obvious secret with which FBI agents confronted her), she succeeded
in avoiding incriminating herself.
But by saving herself from indictment, she may have doomed her
campaign for president. In this dangerous world, how can a person seeking the
presidency be so dumb or ignorant or indifferent or reckless or deceptive about
what is a secret and what is not?
The records released last week also reveal that the FBI must have
been restrained from the outset from conducting an aggressive investigation. It
did not present any evidence to a grand jury. It did not ask a grand jury for
any subpoenas, and hence it didn't serve any. It did not ask a judge for any
search warrants, and hence it didn't serve any. The data and hardware it
gathered in the case were given to it in response to simple requests it made.
I counted five times in the report where the FBI lamented that it
did not have what it needed. This is the FBI's own fault. This tepid FBI
behavior is novel in modern federal law enforcement. It is inimical to public
safety and the rule of law. It is close to misconduct in office by high-ranking
FBI officials.
Someone restrained the FBI.
The FBI did not ask Clinton aggressive follow-up questions. Her
interrogators just blithely accepted her answers. They failed to present her
with documents she had signed that would have contradicted what she was telling
them -- particularly, an oath she signed on her first day in office promising
to recognize state secrets when she came upon them and to keep them in secure
venues. And agents violated Department of Justice policy by not recording her
interrogation when her lawyers told them she would not answer questions if her
answers were recorded.
Now the FBI has interjected itself into the presidential campaign
by releasing these documents. Notwithstanding the mountain of evidence pointing
to Clinton's guilt, it is highly improper and grossly unfair to release
evidence gathered against a person who will not be prosecuted. Moreover, it is
tendentious to release only part of the evidence -- only what agents want the
public to see -- rather than the complete file. Yet all this evidence is secret
under DOJ regulations. Had any of it been intended for or presented to a grand
jury, the release of it would have been criminal.
What happened here? The FBI seriously dropped the ball, and
Clinton was more concerned about being indicted than she was about losing the
race for the presidency.
It is apparent that some in FBI management blindly followed what
they were told to do -- exonerate Hillary Clinton. There is no other
explanation for the FBI's failure from the outset to use ordinary law enforcement
tools available to it. Yet some in the FBI are not professionally satisfied by
this outcome. They know that a strong case for prosecution and for guilt is
being ignored for political reasons.
What else do they know?
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