10/27/2016 -
Judge Andrew Napolitano Townhall.com
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.