Politics & Policy

Gee, I’m Starting to Think the Obama DOJ Just Might Be Politicized

Attorney general Loretta Lynch (Reuters photo: Kevin Lamarque)
They took extraordinary measures in a shaky case involving Trump but refused to help FBI investigations involving Hillary and the DNC.

In the heat of the fall campaign, the commentariat got its knickers twisted over Donald Trump’s vow that, if elected, he’d have his Justice Department appoint a special prosecutor to investigate Hillary Clinton, his political rival. How remarkable, then, that the media is so indifferent to the revelation that, at the very same time, the Obama Justice Department was actively conducting an investigation of Trump.

As I recounted in Wednesday’s column, the FBI reportedly had suspicions that Trump, or at least members of his “team,” might be violating financial and banking laws. Upon poking around, the Bureau determined there was no “nefarious purpose” in the connection of a server in Trump Tower to at least one bank.

Yet the case was not dropped upon the finding of no criminality. Instead, apparently because the bank or banks involved were Russian, the matter was pursued as a national-security investigation under the Foreign Intelligence Surveillance Act (FISA). Indeed, the investigation may well be ongoing.

Reporting indicates that surveillance warrants were sought from the FISA court in June and October 2016. The first one is said to have “named” Trump himself (we don’t know if that means the government was targeting Trump for surveillance, or if his name was merely mentioned in the FISA application). That application was apparently so lacking that the FISA court refused to authorize it, even though that court is generally quite accommodating of government requests to conduct secret searches and eavesdropping. The court is reported to have granted a narrower application in October — one that appears not to have named Trump. The court’s proceedings are secret, so this reporting cannot be confirmed.

I want to draw attention to a fact I did not dwell on in Wednesday’s column: The FBI is not authorized to seek a national-security surveillance warrant from the FISA court — just as it is not authorized to seek such a warrant from a U.S. district court in an ordinary criminal case. Only the Justice Department is permitted to do that. The FBI could not have sought FISA warrants against Trump without the Obama Justice Department’s approval and assistance.

Interesting contrast, isn’t it?

Throughout the criminal investigations of Hillary Clinton for mishandling classified information, the Obama Justice Department would not use the grand jury or help the FBI obtain search or surveillance warrants. As a result, the FBI had no power to compel the production of evidence. Suspects had to be cajoled into cooperating. The only thing the Justice Department was willing to do was grant highly unusual immunity deals, ensuring that suspects could not be prosecuted if they disclosed incriminating evidence.

And then there was the Clinton Foundation corruption investigation. Recall that the Bureau’s investigators, in seeking to build their case, sought access to the e-mails the FBI had managed to acquire in the Clinton e-mails caper. But access was denied by the Obama Justice Department (specifically, by the U.S. Attorney’s office in the Eastern District of New York — the office Loretta Lynch led before being elevated to attorney general).

And now we learn that, despite what the intelligence community assures us were grave concerns about Russia’s role in hacking operations against the Democratic National Committee and Clinton campaign chairman John Podesta, the FBI never obtained access to the physical servers and devices believed to have been hacked.

According to FBI director James Comey’s congressional testimony this week, the FBI made repeated requests for access (presumably to the DNC and the Clinton campaign), but was rebuffed.

The FBI had no legal power to compel the production of evidence from the DNC or Podesta; for that, they needed the Obama Justice Department.

Bear in mind: The joint assessment released by the FBI, CIA, and NSA last week describes the penetration of the Democratic victims’ communications as “cyber-espionage” — an extremely serious offense with obvious national-security implications. Now we learn, however, that in forming that explosive conclusion, our intelligence agencies were content to rely on an examination by an unidentified “private company.”

When pressed by the Senate Intelligence Committee about why the FBI was denied access to the DNC’s servers and Podesta’s device, Comey reportedly said he did not know.

That sounds like a dodge coming from someone as generally well-informed as the director. Understand, though, that the question was more politically fraught than readers not versed in criminal procedure may appreciate. In essence, he was being asked to explain why the Obama Justice Department did not help the FBI.

It comes back to the same issue that plagued the Clinton investigation: The FBI had no legal power to compel the production of evidence from the DNC or Podesta; for that, they needed the Obama Justice Department.

Only the Justice Department has the power to open a grand-jury investigation. That would have enabled the FBI, by using grand-jury subpoenas, to demand access to the devices in order to do its own examination. Or, if exigent circumstances dictated seizing evidence rather than asking for its production, the FBI would have needed the Justice Department’s assistance to compose a search-warrant application and present it to a U.S. district judge for approval.

Just as in the Clinton e-mails investigation, the Justice Department was either AWOL or functioning as counsel for the Democrats — not for the United States.

If the Justice Department refuses to assist the FBI, the FBI is in no position to force witnesses in possession of vital evidence to surrender it.

If the Justice Department refuses to assist the FBI, the FBI is in no position to force witnesses in possession of vital evidence to surrender it. Agents are reduced to pleading with those witnesses for voluntary cooperation. If they refuse — and if the Democrat-led Justice Department declines to force the Democratic National Committee and the Democratic presidential campaign to produce evidence — then the FBI has no choice but to accept what the FBI would never tolerate in a normal case: analysis by a private, Democrat-retained company rather than the FBI’s legendary forensics lab.

On the other hand, if the Justice Department decides a case against Republicans is worth pursuing aggressively, even the absence of evidence of a crime is no obstacle — they just go the FISA court, and they keep going until they get the answer they like.

So, in a nutshell: A vague and apparently unsubstantiated suspicion of criminality connected to the Republican presidential candidate, based on potential involvement of Russia, prompts the Obama Justice Department to continue investigating under FISA and to approach the court twice — the latter time, very shortly before Election Day — for surveillance warrants.

In stark contrast, concrete and substantiated suspicions of wrongdoing by the Democratic presidential candidate prompt a refusal by the Obama Justice Department to assist the FBI investigation (except to immunize the wrongdoers). Moreover, despite what the intelligence community maintains is confirmed evidence of Russian cyberespionage, the Obama Justice Department — far from seeking court warrants — refuses to compel production of Democratic communication devices.

You’d almost think the Obama Justice Department makes enforcement decisions based on partisan politics.

Most Popular


What We’ve Learned about Jussie Smollett

It’s been a few weeks since March 26, when all charges against Jussie Smollett were dropped and the actor declared that his version of events had been proven correct. How’s that going? Smollett’s celebrity defenders have gone quiet. His publicists and lawyers are dodging reporters. The @StandwithJussie ... Read More

Kamala Harris Runs for Queen

I’m going to let you in on a secret about the 2020 presidential contest: Unless unforeseen circumstances lead to a true wave election, the legislative stakes will be extremely low. The odds are heavily stacked against Democrats’ retaking the Senate, and that means that even if a Democrat wins the White House, ... Read More
Politics & Policy

The Lessons of the Mueller Probe

Editor’s Note: The following is the written testimony submitted by Mr. McCarthy in connection with a hearing earlier today before the House Permanent Select Committee on Intelligence on the Mueller Report (specifically, the first volume of the report, which addresses Russia’s interference in the 2016 ... Read More

Why Are the Western Middle Classes So Angry?

What is going on with the unending Brexit drama, the aftershocks of Donald Trump’s election, and the “yellow vests” protests in France? What drives the growing estrangement of southern and eastern Europe from the European Union establishment? What fuels the anti-EU themes of recent European elections and ... Read More
Energy & Environment

The Climate Trap for Democrats

The more the climate debate changes, the more it stays the same. Polls show that the public is worried about climate change, but that doesn’t mean that it is any more ready to bear any burden or pay any price to combat it. If President Donald Trump claws his way to victory again in Pennsylvania and the ... Read More
White House

Sarah Sanders to Resign at End of June

Sarah Huckabee Sanders will resign from her position as White House press secretary at the end of the month, President Trump announced on Twitter Thursday afternoon. https://twitter.com/realDonaldTrump/status/1139263782142787585 Sanders, the daughter of former Arkansas governor Mike Huckabee, succeeded Sean ... Read More
Politics & Policy

But Why Is Guatemala Hungry?

I really, really don’t want to be on the “Nicolas Kristof Wrote Something Dumb” beat, but, Jiminy Cricket! Kristof has taken a trip to Guatemala, with a young woman from Arizona State University in tow. “My annual win-a-trip journey,” he writes. Reporting from Guatemala, he discovers that many ... Read More