The FBI’s so-called investigation of Hillary Clinton was riddled with procedural errors, some of which may have been illegal. From Andrew Napolitano at antiwar.com:
When Hillary Clinton delivered a campaign post-mortem to her major supporters in a telephone conference call late last week, she blamed her loss in the presidential election on FBI Director James Comey. She should have blamed the loss on herself. Her refusal to safeguard state secrets while she was secretary of state and her failure to grasp the nationwide resentment toward government by the forgotten folks in the middle class were far likelier the cause of her defeat than was Comey.
Yet it is obvious that law enforcement-based decisions in the past four months were made with an eye on Election Day, and the officials who made them evaded the rule of law.
Here is the back story.
The statutory obligation of the FBI is to gather evidence to aid in the prosecution or prevention of federal crimes or breaches of national security. The process of complying with this obligation necessarily involves making some legal judgments about the relevance, probity and even lawfulness of the gathered evidence. These judgments are sometimes made on the streets in an emergency and sometimes made after consultation and consensus. But the whole purpose of this evidence-gathering and decision-making is to present a package to the Department of Justice, for which the FBI works, for its determination about whether or not to seek a prosecution.
In cases in which subpoenas are needed, the FBI must work in tandem with the DOJ because subpoenas in criminal cases can be issued only by grand juries and only DOJ lawyers can ask grand juries to issue them. Usually, the FBI and the DOJ work together to present what they have to a grand jury in order to build a case for indictment or to induce a grand jury to issue subpoenas and help them gather more evidence.
Federal judges become involved when search warrants or arrest warrants are needed. These are often emergent situations, as the evidence to be seized or the person to be arrested might be gone if not pursued in short order. They require the presentation of evidence to a judge quickly and in secret. It is the judge’s role to decide whether the DOJ/FBI team has met the constitutional threshold of probable cause. Probable cause is met when the prosecutorial team shows the judge that the evidence the team seeks from the execution of the warrant more likely than not will implicate someone in criminal behavior.
Having issued many search and arrest warrants myself, I know that judges need to be curious and skeptical. After all, only one side is appearing before the judge, and the whole appearance is often quick, unorthodox and in secret. A healthy curiosity and skepticism will cause a prudent jurist to ask whether the grand jury really needs what the search warrant seeks. If the reply is that there is no grand jury, most judges will terminate the application and conclude that it is a fishing expedition – or going “sideways,” as law enforcement says – not a serious criminal investigation worthy of judicial involvement.
All of this is commanded by law to be kept secret so as to preserve evidence, avoid tipping off a potential defendant capable of flight and preserve the reputation of a person not indicted.
That is at least the way these things are supposed to work. Yet none of this happened in the recently reopened and re-terminated investigation of the misuse of emails containing state secrets by Clinton.
To continue reading: The Federal Bureau of Political Investigation
