Why the Justice Department Won’t Work with the FBI on Clinton’s E-mail Case

By Andrew C. McCarthy

Saturday, January 23, 2016

Another day, another double-take reading the New York Times.

The latest shoe in the investigation of Hillary Clinton’s scandalous mishandling of classified information dropped heavily this week. It had already been reported that, contrary to her denials, hundreds of secret intelligence communications were transmitted over the private, unsecured e-mail system on which the former secretary of state recklessly conducted government business. It is now clear that some of these contained “top secret/SAP” information. (SAP is “special access programs.”) This indicates defense secrets of the highest order, the compromise of which can destroy vital intelligence programs, get covert agents killed, and imperil national security.

Yet, in reporting the story, the Times’ Mark Mazzetti took pains to stress: “The government has said that Mrs. Clinton is not a subject of the investigation.”

Really? Well, to put it in Clintonian terms: It all depends on what the definition of “subject” is.

Though you wouldn’t know it from the Times, “subject” is a term of art in criminal investigations. It refers to one of the three categories into which prosecutors fit every relevant actor. Subjects are people whose conduct is being scrutinized and who, depending on what evidence turns up, may or may not be charged. This distinguishes them from targets, who are suspects virtually certain to be indicted for an obvious crime; and from mere witnesses, whose interaction with a suspect suggests no criminality on their part (e.g., the teller in a bank hold-up, or the neighbor awakened by a fatal gunshot next door).

For law enforcement, targets and mere witnesses are easy to deal with. Targets usually decline to be interviewed (as is their right under the Fifth Amendment). Even if they are not guilty, it is often prudent for them to wait to see what the government alleges before they answer questions. Witnesses tend to speak freely because there is no reason not to.

“Subject” is the ambiguous category. A subject has engaged in conduct that appears criminal but may have an innocent explanation. Cooperating makes sense if the subject’s account is likely to convince the government not to file charges. If not, cooperation is fraught with risk, and a competent lawyer will probably advise against it.

If someone’s conduct is being investigated for potential wrongdoing, it is safe to assume that person is a subject of that investigation. Thus understood, Mrs. Clinton is not only a subject; she is the main subject. After all, the investigation centers on her mishandling of classified information via a private e-mail system that she improperly set up for all her government business and over which she well knew it was illegal to disseminate classified information. And if recent reporting is accurate, the investigation is now delving into potential corruption: the favorable treatment donors to her private foundation were given by the State Department she was running. Given that the investigation appears to be tracking her unique activities, how could she possibly not be a subject? What would otherwise be the point of investigating?

Yet the Times’ report does not just deny that Mrs. Clinton is a subject. Echoing the Clinton presidential campaign, it claims that the government itself says she is not a subject.

How is that possible? Perhaps a bit more background on how investigations work will pierce the Clintonian fog.

First, there is one other thing you should know about the designations “target” and “subject” — one of those things so obvious it is easy to miss. These are not just random words. They indicate that a suspect is a target or a subject of something.

That something is a grand-jury investigation.

In an ordinary case, that would not be a point worth making. The FBI routinely conducts major investigations in collaboration with Justice Department prosecutors — usually from the U.S. attorney’s office in the district where potential crimes occurred. That is because the FBI needs the assistance of a grand jury. The FBI does not have authority even to issue subpoenas, let alone to charge someone with a crime. Only federal prosecutors may issue subpoenas, on the lawful authority of the grand jury. Only prosecutors are empowered to present evidence or propose charges to the grand jury. And the Constitution vests only the grand jury with authority to indict — the formal accusation of a crime. In our system, the FBI can do none of these things.

No Justice Department, no grand jury. No grand jury, no case — period. As a technical matter, no matter how extensively the FBI pokes around on its own, no one can be a subject of a real investigation — i.e., one that can lead to criminal charges — unless and until there is a grand jury. That does not happen until the Justice Department hops on board.

Alas, regular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. The FBI is doing its professional, apolitical best to investigate the presumptive Democratic nominee for president of the United States. The high stakes rattle not only the Clinton campaign but also the Democratic administration in which Mrs. Clinton worked when she engaged in the work-related conduct being investigated. On the one hand, the Obama administration does not want to be seen by the public as obstructing the FBI; on the other hand, President Obama does not want to be seen by his base as tanking the Democrats’ best shot at retaining the White House — the likely fallout if the Obama Justice Department signals that a formal, very serious criminal investigation is underway.

So Obama is hedging his bets. He is letting the FBI investigate, but on its own, without Justice Department prosecutors and the grand jury. This frees the administration and the Clinton campaign to be, by turns, ambiguous and disingenuous about whether there really is a formal investigation going on. As long as it is only the FBI doing the digging, everyone can play along with the farce: The investigation is very “preliminary,” it doesn’t even have “subjects,” and it may even be a Vast Right-Wing Conspiracy sabotage (in which, somehow, the saboteurs are Obama appointees and non-political law-enforcement agents).

I don’t think it’s going to work.

The FBI may not have a Justice Department prosecutor convening a grand jury, but it so happens that Director James Comey (whom I have known since we were pup prosecutors under Rudy Giuliani nearly 30 years ago) is a more accomplished government lawyer than anyone at the Justice Department. In fact, his own decorated DOJ career includes a term as deputy attorney general of the United States under President George W. Bush. Besides working under administrations of both parties, he has overseen prosecutions of both Republicans and Democrats. I’ve known no one in law enforcement more capable of navigating through a political maelstrom. Jim is tough, he is smart, and if there is a case to be made here, he will make it. And if he makes it, it will be bulletproof.

Of course, making the case would not mean the FBI could force attorney general Loretta Lynch — and the president to whom she answers — to pursue the case. The FBI cannot convene a grand jury and present an indictment. But you’d best believe the FBI can make the Obama administration look very bad if it shrinks from doing so. Then it will be a matter of how far Barack Obama is willing to stick his neck out for Hillary Clinton.

I’m betting: not that far.