January 12, 2017
The criminal investigation of Hillary Clinton is back
front and center now that the FBI has released proof that her failure to
safeguard state secrets caused the secrets to fall into the hands of foreign
governments, some of which wish the United States ill.
Even though the case against her — which was closed
and then reopened and then closed again — is old news and she obviously is no
longer a candidate to become president of the United States and has been
staying below the radar for the past two months, recent developments have
regenerated the case.
Here is the back story.
On July 5, FBI Director James Comey announced publicly
that the FBI would recommend against seeking an indictment of Clinton for
espionage — the failure to safeguard state secrets that had been entrusted to
her. He argued that though the case against her was strong — as secretary of
state, she had been extremely careless with secrets; exposed hundreds of
materials that were confidential, secret and top-secret; and used non-secure
mobile devices while in the territory of hostile governments — no reasonable
prosecutor would take the case.
Why was the decision of whether to prosecute Clinton
left to Comey?
The FBI’s job is to gather evidence of federal crimes
and to present that evidence to career prosecutors in the Department of Justice
for evaluation. The FBI has numerous investigative tools available to it. One
of those tools is presenting evidence to a grand jury and requesting subpoenas
from it. Another is presenting evidence to a federal judge and requesting
search warrants from the judge. A third is obtaining the indictment of someone
who is in the inner circle of the person who is the true target of the
investigation and then persuading that indicted person to become a government
witness.
None of those tools was used in the Clinton case.
As well, a major interference with the case occurred
when Attorney General Loretta Lynch agreed to meet privately with former
President Bill Clinton. He was — and still is — also the subject of an FBI
criminal investigation. Though both Lynch and Mr. Clinton denied talking about
the investigations, the attorney general took herself and senior DOJ management
off the Hillary Clinton case, leaving the FBI director with the authority to
decide whether to prosecute. So based on Comey’s decision that no reasonable
prosecutor would take the case against Mrs. Clinton, it was closed.
The case was briefly reopened 11 days before Election
Day. The FBI announced it had stumbled upon a potential treasure-trove of
emails contained in a laptop jointly owned and used by Hillary Clinton’s
closest aide, Huma Abedin, and her husband, former Rep. Anthony Weiner.
Donald Trump argued during the last weeks of the
presidential election campaign that Clinton had exposed state secrets to
hostile foreign governments. FBI agents who disagreed with their boss’s
decision not to seek the indictment of Clinton made the same arguments. Clinton
denied vehemently that she had caused any state secrets to pass into the hands
of hostile foreign governments.
Then Trump was elected president of the United States.
Then Clinton left the public scene.
Then, last Sunday evening, during the NFL playoff game
between the New York Giants and the Green Bay Packers, the FBI posted on its
website more than 300 emails that Clinton had sent to an unnamed colleague not
in the government — no doubt her adviser Sid Blumenthal — that had fallen into
the hands of foreign powers. It turns out — and the Sunday night release proves
this — that Blumenthal was hacked by intelligence agents from at least three
foreign governments and that they obtained the emails Clinton had sent to him
that contained state secrets. Sources believe that the hostile hackers were the
Russians and the Chinese and the friendly hackers were the Israelis.
Last Sunday’s revelations make the case against
Clinton far more serious than Comey presented it to be last summer. Indeed,
Sen. Jeff Sessions, who has been nominated by Trump to be attorney general and
who has been a harsh critic of Clinton’s, told the Senate Judiciary Committee
this week that he would step aside from any further investigation of Clinton,
thereby acknowledging that the investigation will probably be opened again.
One of the metrics that the DOJ examines in deciding
whether to prosecute is an analysis of harm caused by the potential defendant.
I have examined the newly released emails, and the state secrets have been
whited out. Yet it is clear from the FBI analysis of them that real secrets
were exposed by the nation’s chief diplomat — meaning she violated an agreement
she signed right after she took office, in which she essentially promised that
she would not do what she eventually did.
The essence of the American justice system is the rule
of law. The rule of law means that no one is beneath the law’s protections or
above its obligations.
Should Clinton skate free so the Trump administration
can turn the page? Should the new DOJ be compassionate toward Clinton because
of her humiliating election loss and likely retirement from public life? Of
course not. She should be prosecuted as would anyone else who let loose secrets
to our enemies and then lied about it.
Reprinted with the author’s permission.
Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano has
written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion
of Presidential Powers and the Lethal Threat to American Liberty. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit creators.com.
Copyright © 2017 Andrew P. Napolitano
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