In a nutshell, the Federal Bureau of Investigation and the Justice Department permitted Hillary Clinton’s aide Cheryl Mills — the subject of a criminal investigation, who had been given immunity from prosecution despite strong evidence that she had lied to investigators — to participate as a lawyer for Clinton, the principal subject of the same criminal investigation. This unheard-of accommodation was made in violation not only of rudimentary investigative protocols and attorney-ethics rules, but also of the federal criminal law.
Yet, the FBI and the Justice Department, the nation’s chief enforcers of the federal criminal law, tell us they were powerless to object.
Seriously?
In his testimony this week before the House Judiciary Committee, FBI director James Comey inveighed against critics who have slimed the Bureau as “weasels” over its handling of the Clinton e-mails investigation. I am not one of those people. After a quarter-century in the trenches with the Bureau as a prosecutor, I am one of those hopeless romantics who love the FBI and harbor real affection for the director himself.
I genuinely hate this case. I don’t mind disagreeing with the Bureau, a not infrequent occurrence in my former career. But I am hardwired to presume the FBI’s integrity. Thus, no matter how much irregularities in the Clinton investigation have rankled me, I’ve chalked them up to the Bureau’s being hamstrung. There was no chance on God’s green earth that President Obama and his Justice Department were ever going to permit an indictment of Hillary Clinton. Jim Comey says he didn’t make his final decision to recommend against prosecution until after Mrs. Clinton was interviewed at the end of the investigation, and that he did not coordinate that decision with his Obama-administration superiors. If he says so, that’s good enough for me. But it doesn’t mean the director made his decision detached from the dismal reality of the situation. And whatever one’s armchair-quarterback view on how he should have handled it, that reality was not of his making.
But just as Director Comey rightly objects to being regarded as a weasel, I don’t much like being regarded as an idiot . . . which is what I’d have to be to swallow some of this stuff.
The FBI absolutely has control over who may be present at an interview with a subject of an investigation. There are a variety of reasons for this, but the most basic one is that an interview never has to happen unless the FBI consents to it.
In his testimony, Comey kept stressing that Mrs. Clinton’s interview was “voluntary” — contending that since she was not required to submit to it, she could impose any conditions on her agreement to do so. That is nonsense. The interview was voluntary on both sides. The FBI is never required to indulge conditions that make a mockery of its serious business.
In this regard, Comey is like a guy who ties his own hands behind his back and then says he was powerless to defend himself. If Clinton declined to submit to an FBI interview unless Mills (or the similarly situated lawyer Heather Samuelson) was permitted to be present, the investigators could simply have handed her a grand-jury subpoena. They could then have politely directed her to a chamber where she would be compelled to answer questions — under oath and all by her lonesome, without any of her lawyer legion in attendance.
But, you see, in this investigation — unlike every other major criminal investigation in which the government tries to make the case rather than not make the case — the Justice Department declined to convene a grand jury.