The real story be­hind the FBI’s Clin­ton in­ves­ti­ga­tion

De­spite crit­i­cism from both ma­jor par­ties, Comey has acted with hon­esty

The Washington Times Weekly - - Commentary - By Ron­ald Kessler

Rarely has the FBI been so em­broiled in pub­lic con­tro­versy. And never has so much mis­in­for­ma­tion about its work­ings been so preva­lent. At a re­cent lun­cheon meet­ing of the Wash­ing­ton chapter of the So­ci­ety of For­mer FBI Agents, Michael Stein­bach, the FBI’s ex­ec­u­tive as­sis­tant di­rec­tor in charge of na­tional se­cu­rity in­ves­ti­ga­tions, tried to straighten some of it out.

Mr. Steibach told the 80 for­mer FBI agents in at­ten­dance that while FBI Di­rec­tor James Comey made the fi­nal de­ci­sion on the case, Mr. Stein­bach him­self su­per­vised the FBI’s in­ves­ti­ga­tion of Hil­lary Clin­ton’s han­dling of her emails, ac­cord­ing to John L. Martin, a for­mer FBI agent who at­tended the lunch meet­ing.

About 25 FBI per­son­nel worked on the case, Mr. Stein­bach said. Con­trary to what seems to be a given in some me­dia cir­cles, no re­bel­lion of FBI agents has taken place be­cause of Mr. Comey’s de­ci­sion not to pros­e­cute the pres­i­den­tial can­di­date. In fact, ac­cord­ing to Mr. Martin, Mr. Stein­bach said all of those who worked on the case said they agreed with Mr. Comey’s de­ci­sion.

To be sure, many for­mer agents dis­agree with the de­ci­sion. But hav­ing writ­ten three books about the FBI, in­clud­ing one that led to the dis­missal of Wil­liam Ses­sions as FBI di­rec­tor over his abuses, I can tell you that all for­mer agents never agree on any­thing.

Mr. Stein­bach told the for­mer agents at the meet­ing that he was dis­ap­pointed that so many for­mer agents have ques­tioned the in­tegrity of the FBI’s in­ves­ti­ga­tion without first­hand knowl­edge ei­ther of the facts or the think­ing be­hind the de­ci­sion not to pros­e­cute Mrs. Clin­ton.

Aside from the FBI agents and pros­e­cu­tors who worked on the case, no one is in a bet­ter po­si­tion to ex­plain that de­ci­sion than John Martin. Af­ter leav­ing the FBI, Mr. Martin be­came a Jus­tice Depart­ment pros­e­cu­tor. For 25 years he was in charge of pros­e­cut­ing all the es­pi­onage laws, in­clud­ing Sec­tion 793(f) of the fed­eral crim­i­nal code, the statute that is per­ti­nent in the Clin­ton in­ves­ti­ga­tion. Among the 76 spies Mr. Martin pros­e­cuted were John A. Walker Jr., Jonathan Pol­lard and Aldrich Ames.

Dur­ing those years, Mr. Martin tells me, he never used Sec­tion 793(f) alone be­cause, while that law makes it a felony to han­dle ma­te­rial re­lat­ing to the na­tional de­fense with “gross neg­li­gence,” it is un­likely a jury would con­vict a de­fen­dant on that charge alone without a show­ing of crim­i­nal in­tent.

Thus, in the case of for­mer CIA Di­rec­tor David Pe­traeus, be­sides charg­ing him with a vi­o­la­tion of Sec­tion 793(f), the Jus­tice Depart­ment charged him with ly­ing to the FBI, an in­di­ca­tion of crim­i­nal in­tent. He agreed to a plea dis­po­si­tion.

Be­yond the con­spir­acy the­o­ries about Mr. Comey’s de­ci­sion not to pros­e­cute, crit­ics have mar­shaled a bur­geon­ing num­ber of non se­quiturs: The FBI should have recorded its agents’ in­ter­view of Mrs.Clin­ton. She should have been placed un­der oath. She should have been given a poly­graph test. Mr. Comey should have rec­om­mended im­pan­el­ing a grand jury so that sub­poe­nas could have been is­sued for per­ti­nent ev­i­dence. The fact that he gave limited im­mu­nity from pros­e­cu­tion to key Clin­ton aides means he was giv­ing her a break. And Mr. Comey ig­nored the fact that Mrs. Clin­ton has lied re­peat­edly about her use of a pri­vate email server for sen­si­tive govern­ment busi­ness to try to cover up her egre­gious con­duct.

But ex­cept in un­usual cir­cum­stances, the FBI does not record in­ter­views un­less a sub­ject is in cus­tody af­ter an ar­rest. Ly­ing to the FBI is a crime, so there is no need to place a sub­ject un­der oath. The fact that Mrs. Clin­ton has lied re­peat­edly to the pub­lic is ir­rel­e­vant in a crim­i­nal in­ves­ti­ga­tion. Only if she lied to the FBI dur­ing her in­ter­view could she be pros­e­cuted. And poly­graphs are vol­un­tary. Mrs. Clin­ton, whose FBI in­ter­view was vol­un­tary, never would have con­sented to tak­ing a poly­graph test.

By elic­it­ing Mrs. Clin­ton’s co­op­er­a­tion, Mr. Comey avoided the de­lays that her high-pow­ered lawyers would have im­posed if a grand jury had is­sued sub­poe­nas. The fact that Mr. Comey gave limited im­mu­nity to aides demon­strates how de­ter­mined he was to gather ev­i­dence to in­dict his tar­get.

Fi­nally, bad as it may look, whether FBI of­fi­cial An­drew McCabe be­came FBI deputy di­rec­tor months af­ter his wife re­ceived Democrats’ cam­paign con­tri­bu­tions and ended her un­suc­cess­ful run for the Vir­ginia state Se­nate is ir­rel­e­vant. So is the fact that John Podesta, Mrs. Clin­ton’s cam­paign chair­man, had din­ner with pals who in­cluded his long­time friend, Peter Kadzik, who is a Jus­tice Depart­ment leg­isla­tive af­fairs of­fi­cial.

Though ev­ery­one knows this isn’t go­ing to hap­pen, now both Repub­li­cans and Democrats are call­ing for Mr. Comey to re­veal ex­actly what the FBI found on a lap­top shared by Mrs. Clin­ton’s top aide Huma Abe­din and her hus­band An­thony Weiner that led to his de­ci­sion to restart the Clin­ton in­ves­ti­ga­tion. Ob­vi­ously, if the FBI knew what is rel­e­vant in the newly dis­cov­ered emails, there would have been no need to re­open the in­ves­ti­ga­tion. By its na­ture, that in­ves­ti­ga­tion will take time.

Once the new ev­i­dence was un­cov­ered by his agents, Mr. Comey found him­self in a dif­fi­cult po­si­tion. If he had kept quiet about the re­open­ing of the in­ves­ti­ga­tion un­til af­ter the pres­i­den­tial elec­tion, he would have been ac­cused by Repub­li­cans of cov­er­ing up for Mrs. Clin­ton. By dis­clos­ing the new in­for­ma­tion be­fore the elec­tion, he opened him­self to be­ing ac­cused by Democrats of fa­vor­ing Don­ald Trump.

As he did in lay­ing out the ev­i­dence against Mrs. Clin­ton at a press con­fer­ence and call­ing her ac­tions “ex­tremely care­less,” Mr. Comey chose the right course by be­ing hon­est with the Amer­i­can peo­ple and up­dat­ing them on the sta­tus of the FBI in­ves­ti­ga­tion so they could judge her con­duct for them­selves. Ron­ald Kessler, a for­mer Wash­ing­ton Post in­ves­tiga­tive re­porter, is the au­thor of “The Se­crets of the FBI” and “The First Fam­ily De­tail: Se­cret Ser­vice Agents Re­veal the Hid­den Lives of the Pres­i­dents.”


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