There is nothing more inequitable than treating two fundamentally different things as if they were the same. This should be the retort to the media-Democrat complex’s latest “we wuz robbed” 2016 election narrative: The claim that the FBI became a rogue partisan, publicizing the investigation of Hillary Clinton while keeping mum on the investigation of Donald Trump.
This theme was hammered by Democrats in the questioning of FBI director James Comey during Wednesday’s Senate Judiciary Committee hearing. It was, moreover, the leitmotiv of the New York Times’ 8,000-word report on the FBI’s handling of the two investigations — the losing side’s best shot at writing the definitive history.
It is also dumb as a doornail.
Hillary Clinton’s e-mail scandal, based on mountainous evidence of law-breaking, resulted in a criminal investigation. The suspicion that associates of Donald Trump have troubling ties to Kremlin insiders, based on comparatively sparse evidence, has resulted in a foreign-intelligence investigation. The two types of inquiry are fundamentally different — dissimilar in their objectives, their processes, and their presumptions about secrecy and disclosure. The only similarity is that each is called an “FBI investigation.” To contend that this makes them equivalents, suitable for similar treatment, is akin to saying red and blue must be the same thing because each is a color.
A criminal investigation is launched when investigators have a good-faith basis to believe one or more penal laws may have been violated. It is an inquiry that targets a particular person (or persons in the case of concerted criminal activity). Once investigators are convinced that a crime has been committed by the suspect, the objective of the investigation is to build a case fit for prosecution in a court of law — i.e., to amass sufficient evidence to prove the essential elements of the statutory offense beyond a reasonable doubt. The investigators fully anticipate making a formal public charge against the suspect (i.e., an indictment), which will be followed by a public trial — the presentation of witness testimony and tangible evidence in a judicial proceeding open to the media and other spectators.
For commonsense reasons, various aspects of criminal investigations are secret. Search warrants and wiretaps would not be very useful if police had to notify the suspect in advance of their raids and surveillances. It would be very difficult to get the cooperation of witnesses or compel the production of relevant documents if grand jury proceedings were conducted in public. Most significantly, the suspect is presumed innocent. To publicize investigative information before a person has an opportunity to test its credibility under due-process rules would undermine the presumption and brand the person a criminal.
Nevertheless, even amid the secrecy, an expectation of publicity hovers over every criminal investigation. Because resources are finite and crime is plentiful, police agencies rarely waste their time on unprovable cases. It is anticipated that charges will be filed, and that eventually everything will be revealed: Affidavits supporting warrants will be unsealed and provided to defense counsel; there will also be discovery of the evidence to be presented at trial, the grand-jury testimony of the witnesses, investigative reports detailing surveillances and witness interviews, and any potentially exculpatory information in the prosecution’s files.
All of this is disclosed because of what a criminal investigation, in essence, is: an effort by the government to deprive a person of his constitutional right to liberty. We permit this only under the strictures of due process — a trial of the accused before a jury of his peers in which he enjoys the assistance of counsel, the right to confront witnesses, and an opportunity to present any defense he may have. Because the whole point is to assure the society that the government has met its burden of proof before a person’s liberty is removed, the proceedings must be public.