Tuesday, November 1, 2016

Call Hillary Clinton’s Bluff

The FBI director and the Democratic nominee are getting what they deserve.

By William McGurn
The Wall Street Journal
November 1, 2016

Here are four words this columnist never thought he would type: Hillary Clinton is right.

Mrs. Clinton is right, at least, to this extent: When an FBI director links a presidential candidate to a criminal investigation 11 days out from the election, he owes the American people more than a vague promise to get back to us down the road.

Mrs. Clinton has responded by calling on Mr. Comey to release the emails the bureau has discovered on a home computer used by her aide, Huma Abedin. She demands this only because she is confident it will never happen.

Certainly there exist many practical obstacles to releasing the emails uncovered, including the inadvertent disclosure of classified information. Nevertheless, as unlikely as release may be, the case for more public information has become crucial now that the Justice Department has indicated this Clinton investigation, like the one before it, will go nowhere.

How do we know this? Mr. Comey may speak of going forward. But the objections of Justice suggest that it will again ensure that any investigation will be hindered by a lack of search warrants and subpoenas—and that whatever the FBI may turn up will never be put before a grand jury.

Justice inadvertently gave us a sign of just how important these tools are in a press release earlier this month touting the guilty felony plea by retired Marine Gen. James Cartwright for lying to the FBI in connection with the unauthorized disclosure of classified information. In it, Justice boasts about using all the tools at its disposal to get the general, including “subpoenas, search warrants and document requests”—tools the FBI mostly lacked while investigating Mrs. Clinton.

A truly independent press corps might help here if it were not bent on validating Donald Trump’s complaints about a rigged system. In the dominant media narrative, not only is Mr. Comey now derided as “political,” his decision to investigate this newly discovered batch of emails is said to have been forced by “conservative” FBI agents.

Mr. Comey may indeed be in the thick of a huge battle within the bureau. But the main objections from FBI agents and former FBI agents have little to do with electoral politics and everything to do with investigative procedure.

FBI agents are professional investigators. In a case involving a former secretary of state who is now a candidate for president, they would expect their director to be telling his agents to make sure every “i” was dotted and every “t” crossed. And doing the same himself.

Instead, it’s all been irregular. Start with the zoo-like atmosphere of Mrs. Clinton’s July 2 FBI interview. Instead of the typical two FBI agents, the interviewee and an attorney or two, this one saw five of Mrs. Clinton’s lawyers and four more from the Justice Department in the room with them.

Three days later, this was followed by what Mr. Comey himself admitted was an “unusual” press conference, in which the FBI director played attorney general by pronouncing that “no reasonable prosecutor” would bring criminal charges. Not to mention the more recent Wall Street Journal scoop that Andrew McCabe, one of Mr. Comey’s deputies, was permitted to help oversee the Clinton email investigation even after his own wife had taken nearly $700,000 in political donations from organizations under the control of a longtime Clinton intimate, Virginia Gov. Terry McAuliffe.

Ironically, one consequence of Mr. Comey’s earlier showboating is that the American public does not appreciate that most of the handcuffs put on FBI investigators—the lack of a grand jury, the crazy immunity deals, the appearance of material witnesses (e.g.,Heather Samuelson and Cheryl Mills) as counsel for Mrs. Clinton, the agreements to destroy laptops belonging to two Clinton aides—are areas where Justice, not the FBI, has authority.

Which today leaves both Mr. Comey and Mrs. Clinton with legitimate beefs. Mr. Comey must rightfully resent a Justice Department he bailed out with his July press conference now painting him as a Republican hack. For her part, Mrs. Clinton must be miffed by an FBI director who comes in at the last minute—at a moment when she is leading in a presidential election—to imply she may be guilty of something very bad while providing almost no detail.

Then again, both are in this fix entirely because of themselves. Mrs. Clinton was the one who decided she would take her entire communications as secretary of state off-grid—and she’s also the one who has been lying and doing everything to keep them from becoming public ever since she was caught. As for Mr. Comey, if his reputation as a square shooter is now in tatters, he did it by going where he had no business going and agreeing to Justice constraints he never should have agreed to.

It’s called rough justice. Which in any case involving Mrs. Clinton and Mr. Comey is probably the closest to real justice we will ever get.

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