The FBI and Hil­lary, again

She may be right that the agency cost her the elec­tion

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a former judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

Last week­end, The New York Times pub­lished a long piece about the ef­fect the FBI had on the out­come of the 2016 pres­i­den­tial cam­paign. As we all know, Don­ald Trump won a com­fort­able vic­tory in the Elec­toral Col­lege while fall­ing about 3 mil­lion votes be­hind Hil­lary Clin­ton in the pop­u­lar vote.

I be­lieve that Mrs. Clin­ton was a deeply flawed can­di­date who failed to en­er­gize the Demo­cratic Party base and who failed to de­liver to the elec­torate a prin­ci­pled rea­son to vote for her. Yet when The New York Times re­porters asked her why she be­lieves she lost the race, she gave sev­eral an­swers, the first of which was the in­volve­ment of the FBI. She may be right.

Here is the back story.

In 2015, a com­mit­tee of the House of Rep­re­sen­ta­tives that was in­ves­ti­gat­ing the deaths of four Amer­i­cans at the U.S. Con­sulate in Beng­hazi learned that the State Depart­ment had no copies of any emails sent or re­ceived by Mrs. Clin­ton dur­ing her four years as sec­re­tary of state. When com­mit­tee in­ves­ti­ga­tors pur­sued this — at the same time that at­tor­neys in­volved with civil law­suits brought against the State Depart­ment seek­ing the Clin­ton emails were pur­su­ing it — it was re­vealed that Mrs. Clin­ton had used her own home servers for her emails and by­passed the State Depart­ment servers.

Be­cause many of her emails ob­vi­ously con­tained govern­ment se­crets and be­cause the re­moval of govern­ment se­crets to any non-se­cure venue con­sti­tutes es­pi­onage, the House Se­lect Com­mit­tee on Beng­hazi sent a crim­i­nal re­fer­ral to the Depart­ment of Jus­tice (DOJ), which passed it on to the FBI. A con­gres­sion­ally is­sued crim­i­nal re­fer­ral means that some mem­bers of Congress who have seen some ev­i­dence think that some crime may have been com­mit­ted. The DOJ is free to re­ject the re­fer­ral, yet it ac­cepted this one.

It di­rected the FBI to in­ves­ti­gate the facts in the re­fer­ral and to re­fer to the in­ves­ti­ga­tion as a “mat­ter,” not as a crim­i­nal in­ves­ti­ga­tion. The FBI cringed a bit, but Direc­tor James Comey fol­lowed or­ders and used the word “mat­ter.”

He should not have re­ferred to it by any name, be­cause un­der DOJ and FBI reg­u­la­tions, the ex­is­tence of an FBI in­ves­ti­ga­tion should not be re­vealed pub­licly un­less and un­til it re­sults in some public court­room ac­tiv­ity.

In early July 2016, Mrs. Clin­ton was per­son­ally in­ter­viewed in se­cret for about four hours by a team of FBI agents who had been work­ing on her case for a year. Dur­ing that in­ter­view, she pro­fessed great mem­ory loss and blamed it on a head in­jury she said she had suf­fered in her home. Some of the agents who in­ter­ro­gated her dis­be­lieved her tes­ti­mony about the in­jury and, over the Fourth of July week­end, asked Mr. Comey for per­mis­sion to sub­poena her med­i­cal records.

When Mr. Comey de­nied his agents the per­mis­sion they sought, some of them at­tempted to ob­tain the records from the in­tel­li­gence com­mu­nity. Be­cause Mrs. Clin­ton’s med­i­cal records had been dig­i­tally recorded by her physi­cians and be­cause the FBI agents knew that the Na­tional Se­cu­rity Agency has dig­i­tal copies, they sought Mrs. Clin­ton’s records from their NSA col­leagues. Ly­ing to the FBI is a felony, and these agents be­lieved they had just wit­nessed a se­ries of lies.

When Mr. Comey learned what his cre­ative agents were up to, he jumped the gun by hold­ing a news con­fer­ence on July 5, dur­ing which he an­nounced that the FBI was rec­om­mend­ing to the DOJ that it not seek Mrs. Clin­ton’s in­dict­ment be­cause “no rea­son­able prose­cu­tor” would take the case. He then did the un­think­able. He out­lined all of the damn­ing ev­i­dence of guilt that the FBI had amassed against her.

This dou­ble-edged sword — we won’t charge her, but we have much ev­i­dence of her guilt — was un­prece­dented and un­heard of in the midst of a pres­i­den­tial elec­tion cam­paign. Both Repub­li­cans and Democrats found some joy in Mr. Comey’s words. Yet his many agents who be­lieved that Mrs. Clin­ton was guilty of both es­pi­onage and ly­ing were fu­ri­ous — fu­ri­ous that Mr. Comey had re­vealed so much, fu­ri­ous that he had de­meaned their work, fu­ri­ous that he had stopped an in­ves­ti­ga­tion be­fore it was com­pleted.

At about the same time that the House Beng­hazi Com­mit­tee sent its crim­i­nal re­fer­ral to the DOJ, Amer­i­can and Bri­tish in­tel­li­gence be­came in­ter­ested in a po­ten­tial con­nec­tion be­tween the Trump pres­i­den­tial cam­paign and in­tel­li­gence agents of the Rus­sian govern­ment. This in­ter­est re­sulted in the now in­fa­mous year-plus-long elec­tronic sur­veil­lance of Mr. Trump and many of his as­so­ciates and col­leagues. This also pro­duced a crim­i­nal re­fer­ral from the in­tel­li­gence com­mu­nity to the DOJ, which sent it to the FBI.

Yet this re­fer­ral and the ex­is­tence of this in­ves­ti­ga­tion was kept — quite prop­erly — from the press and the public. When Mr. Comey was asked about it, he de­clined to an­swer. When he was asked un­der oath whether he knew of any sur­veil­lance of Mr. Trump be­fore Mr. Trump be­came pres­i­dent, Mr. Comey de­nied that he knew of it.

What was go­ing on with the FBI?

How could Mr. Comey jus­tify the public rev­e­la­tion of a crim­i­nal in­ves­ti­ga­tion and a sum­mary of ev­i­dence of guilt about one can­di­date for pres­i­dent and re­main silent about the ex­is­tence of a crim­i­nal in­ves­ti­ga­tion of the cam­paign of an­other? How could he deny knowl­edge of sur­veil­lance that was well-known in the in­tel­li­gence com­mu­nity, even among his own agents? Why would the FBI direc­tor in­ject his agents, who have prided them­selves on pro­fes­sional po­lit­i­cal neu­tral­ity, into a bit­terly con­tested cam­paign hav­ing been warned it might af­fect the out­come? Why did he re­ject the law’s just com­mands of si­lence in fa­vor of putting his thumb on po­lit­i­cal scales?

I don’t know the an­swers to those ques­tions. But the Amer­i­can public, and Hil­lary Clin­ton, is en­ti­tled to them.

In­au­gu­ra­tion Day, Jan. 20, 2017, was a fed­eral hol­i­day for most peo­ple in the Na­tional Cap­i­tal Re­gion. Of­fices around the re­gion were empty. On Joint Base An­drews, one of­fice was busier than nor­mal: the Air Force District of Wash­ing­ton (AFDW). While most sat at home watch­ing the his­tor­i­cal event from their couch, mem­bers of AFDW sat by their com­put­ers and phones, anx­iously watch­ing the In­au­gu­ral events un­fold, ready to act in case something went wrong, but hop­ing they wouldn’t be needed. This readi­ness, what we call “con­tin­gency op­er­a­tions” in the mil­i­tary, is the pri­mary but lit­tle-known mis­sion of AFDW and one of the rea­sons AFDW was cre­ated.

Fol­low­ing the at­tacks of Sept. 11, 2001, a need for a stronger home­land

This dou­ble-edged sword — we won’t charge her, but we have much ev­i­dence of her guilt — was un­prece­dented and un­heard of in the midst of a pres­i­den­tial elec­tion cam­paign. Both Repub­li­cans and Democrats found some joy in Mr. Comey’s words. Yet his many agents who be­lieved that Mrs. Clin­ton was guilty of both es­pi­onage and ly­ing were fu­ri­ous.

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