by Andrew P. Napolitano, Lew Rockwell:
When FBI Director James Comey publicly revealed his recommendation to the Department of Justice last week that former Secretary of State Hillary Clinton not be prosecuted for espionage, he unleashed a firestorm of criticism from those who believe that Clinton was judged by different standards from those used to judge others when deciding whether to bring a case to a grand jury.
The FBI investigation had a bizarre ending to it. FBI recommendations are never made public as this one was. Attorney General Loretta Lynch had been compromised by her politically disastrous but legally consequential meeting out of the view of the media with Bill Clinton just one week before Comey’s announcement. Whatever they discussed, the overwhelming public impression was such that Lynch removed herself and her senior aides from the case, effectively leaving the FBI to have the final say. This is unheard of in the post-Hoover FBI.
The Comey announcement itself gave two reasons for recommending against indictment. One was that “no reasonable prosecutor” would take the case. That is not a judgment the FBI gets paid to make. The FBI’s job is to gather, present and evaluate facts and evidence, not predict what prosecutors might do with it. The other stated reason for recommending against indictment was that though Clinton may have been “extremely careless” in handling state secrets, she was not “grossly negligent,” which is the standard required by the espionage statute.
Yet Comey also acknowledged that Clinton sent state secrets to nongovernmental colleagues who lacked national security clearances, that those people were hacked by hostile intelligence services and that she used her numerous non-secure mobile devices recklessly while inside the territorial borders of those hostile governments. If all that is somehow extremely careless but not grossly negligent, then many who have done far less than Clinton — and have been prosecuted and convicted — were wrongly prosecuted.
Since Comey’s announcement last week, several new factors have come to light. One is that the DOJ never presented any evidence to a grand jury. It never sought subpoenas from a grand jury. This is unheard of in major criminal investigations because the FBI alone has no subpoena power and needs a grand jury to issue subpoenas for it.
The absence of a sitting grand jury also makes one wonder about the circumstances under which and the purpose for which the DOJ obtained immunity for Bryan Pagliano, Clinton’s internet technology adviser. She paid him $5,000 to migrate her public and her secret State Department email streams from the government’s secure servers to her own non-secure servers. Immunity, which is essentially the pre-indictment permanent forgiveness of criminal behavior, cannot be given lightly and can only be given in return for testimony — usually to a grand jury or a trial jury. Strangely, that was not the case here.
Nevertheless, Clinton’s persistent problems with personal honesty have brought her face to face with three more criminal investigations. One is for public corruption. The second is for perjury. And the third is for misleading Congress.
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