Law & the Courts

Revealed: Eleventh-hour Subpoenas in the Clinton E-mails Investigation

(Reuters photo: Adrees Latif)
Why the Obama Justice Department avoided the grand jury . . . until it had no choice

On the matter of the 2016 election, why is there an investigation into Russian meddling but no investigation of Justice Department meddling? The latter effort was more extensive. And it sure looks like it would be a lot easier to prove.

This week, courtesy of Judicial Watch, we learned that the Obama Justice Department and the FBI did, in fact, use the grand jury in the Clinton e-mails probe. Or, to be more accurate, they fleetingly used grand-jury subpoenas, which were issued to BlackBerry service providers at the tail end of the investigation — a futile attempt to recover e-mails sent to and from then–Secretary of State Hillary Clinton right before she transitioned from BlackBerry to her homebrew server.

That’s a story unto itself, which we’ll get to in due course.

The news of grand-jury involvement contradicts prior reporting, at least at first blush. As we shall see, to say a grand jury was “involved” does not mean there was a real grand-jury investigation. It does, however, reinforce what we have said all along: The main subjects of the investigation could easily have been compelled to provide evidence and testimony — which is what investigators do when they are trying to make a case rather than not make a case. There was no valid reason for prosecutors to treat criminal suspects to an immunity spree. They could, for example, have served grand-jury subpoenas on Cheryl Mills and Heather Samuelson, demanding that they surrender the private computers they used to review Clinton’s e-mails, including classified e-mails it was unlawful to transfer to such non-secure computers. The Justice Department did not have to make promises not to use the evidence against the suspects in exchange for getting the evidence.

Mrs. Clinton’s friends at the Justice Department chose not to subpoena Mrs. Clinton’s friends from the State Department and the campaign. The decision not to employ regular criminal procedures — i.e., the decision not to treat the case like other criminal cases — was quite deliberate.

No need to ‘convene’ a grand jury

When it comes to the grand-jury aspect of this affair, confusion has been caused by the inside-baseball manner in which legal beagles discuss it. I try to avoid that sort of thing, since the point is to clarify things for the non-lawyer. I must confess error, though, in at least once using the shorthand expression “convene a grand jury.”

This unfortunate phrase has been used repeatedly, including in hearings on Capitol Hill. It conveys the misimpression that some formal step had to be taken in order to summon a grand jury so that criminal charges could be considered against Clinton & Co. In actuality, busy federal districts always have grand juries convened because no case may be indicted without their approval. Some grand juries sit just about every work day for a month, handling run-of-the-mill cases. Others meet only occasionally over an extended time (several months, often more than a year) to gather and consider evidence in long-term investigations. Thus, there is no need to “convene” a new grand jury for a particular investigation; a grand jury is always there, at the ready.

So how does evidence get presented to the grand jury?

A prosecutor issues a subpoena, which a federal agent (e.g., from the FBI) then serves on the witness, directing the witness to produce physical evidence for the grand jury (the subpoena duces tecum) and/or to testify before the grand jury on a given date (the subpoena ad testificandum). In the old days, prosecutors kept a stack of subpoena forms in or near their desks and hand-wrote or typed them up as needed. Nowadays, it’s a fill-in-the-blanks computer form.

Thus, there was no need to convene a grand jury in order to use a grand jury’s evidence-collection powers.

For present purposes, the salient point is that prosecutors are not required to meet with a grand jury, or ask its permission, before issuing subpoenas. And when a subpoena calls for the production of physical evidence, the witness is usually instructed to turn the item over to the FBI (or other investigative agency); there is usually no need to show up at the courthouse and hand the item to the grand jurors. Nevertheless, because the subpoena’s power to compel comes from the grand jury, it is expected that the prosecutor will eventually present the resulting evidence to the grand jury, and report to the grand jury regarding subpoenas issued on its authority.

Thus, there was no need to convene a grand jury in order to use a grand jury’s evidence-collection powers. Again, the Justice Department and the FBI could have issued and served subpoenas on Mrs. Clinton and her accomplices at any time. To refrain from doing so was a conscious choice.

So why avoid the grand jury?

The answer can be gleaned from a mammoth New York Times report on the Clinton e-mails probe, published last week. There is much more to this report than we will get to today. For now, suffice it to say that the Obama Justice Department, taking its cues from the Clinton campaign, tried to mislead the public into believing Mrs. Clinton was not the subject of a criminal investigation. The issuance of subpoenas would have put the lie to that diversion.

Don’t call it an ‘investigation’

In July of 2015, after being notified by the inspector general for U.S. intelligence agencies (the “intel IG”) that classified information had been transmitted and stored on Clinton’s private server, the FBI quickly realized that crimes may have been committed. As routinely happens in that situation, the Bureau opened a criminal investigation (which, for reasons not apparent, it code-named “Midyear”).

Initially, the Justice Department publicly confirmed that a criminal referral had been received from the intel IG. But Justice abruptly reversed itself. According to the new party line, what was received was “not a criminal referral,” but instead “a referral related to the potential compromise of classified information” — almost making it sound as if Clinton were a victim rather than the perp.

Of course, the compromise of classified information is a crime, which was why the intel IG made a criminal referral to the Federal Bureau of Investigation (which investigates crimes). That is why the FBI consequently opened a criminal investigation.

Yet, Mrs. Clinton was publicly claiming that the probe was “not a criminal investigation,” but rather “a security review.” This was a lie, but it was studiously adopted by the Obama Justice Department, then led by Attorney General Loretta Lynch, who just happened to have been launched into national prominence in the 1990s when President Bill Clinton appointed her U.S. attorney for the Eastern District of New York — and who was plainly hoping to keep her job in a Hillary Clinton administration. Consequently, Lynch and other top Justice Department officials instructed FBI director James Comey to avoid referring to the probe as an “investigation.” In upcoming congressional testimony, he was to call it a “matter.” Amused, one official even teased the director: “I guess you’re the Federal Bureau of Matters now.”

Hilarious, right?

Well, here’s a teeny problem. In a criminal case, investigators invariably have to resort to grand-jury subpoenas in order to collect evidence. When the recipient reads such a subpoena, he or she learns that the grand jury is conducting a criminal investigation into a potential violation of law. Typically, the subpoena even cites the penal statute of the main offense being probed. The point is to put the recipient on notice regarding what information may be relevant, and to alert the recipient to any potential criminal exposure that might call for asserting the Fifth Amendment privilege against self-incrimination.

Grand-jury investigations are supposed to be secret, but once subpoenas start flying, the nature of the investigation inevitably becomes public. The subjects of the Clinton investigation were operatives of the Clinton presidential campaign, which was desperate to obscure the fact that its candidate was under a criminal investigation. What better way to do this than for the subjects to offer to cooperate voluntarily — without need of subpoenas. And how very accommodating of the Justice Department to play ball . . . and to have those immunity grants ready just in case any of the “cooperators” possessed incriminating evidence!

Grand-jury investigations are supposed to be secret, but once subpoenas start flying, the nature of the investigation inevitably becomes public.

The Petraeus hurdle

So why did the Justice Department issue subpoenas at all?

This is a convoluted part of the story, stemming from the Justice Department’s effective rewriting of the applicable statute to avoid charging Clinton. As the Times tells it, the Justice Department and the FBI knew that to charge Clinton with a crime, it would not be enough to prove she had been “sloppy or careless”; instead, “they needed evidence showing that she knowingly received classified information or set up her server for that purpose.”

As I have contended before, this claim is specious on multiple levels. Subsection (f) of the pertinent statute (the Espionage Act, codified at Section 793 of Title 18, U.S. Code) makes it a felony to mishandle classified information “through gross negligence” – i.e., proving Clinton was sloppy or careless (or “extremely careless,” to use Comey’s own description) could have been sufficient. But beyond that, Clinton willfully set up a private network for the systematic handling of her State Department–related communications, in violation of federal record-keeping requirements of which she was well aware, and under circumstances in which she (a former senator who served for years on the intelligence committee) was a sophisticated longtime consumer of classified information. She was keenly aware that her responsibilities as secretary of state would heavily involve classified information — whether it was “marked” classified or “born classified” because of the subject matter.

It is irrelevant whether Clinton’s purpose was to transmit or store classified information on the private, non-secure server; prosecutors are not required to prove motive. The question is whether she knew classified information would end up on the server, and her set-up made that inevitable.

That is, Clinton could have been prosecuted either for willfully mishandling classified information or for doing so through gross negligence.

The applicable statute elucidates those inconvenient facts, so what a surprise that there was no place for it in the Times’s 8,000-word report. (Maybe if it were a Russian statute?) In lieu of the law, we are treated to another story. Investigators were guided not by the statute but by the precedent allegedly set by the prosecution of David Petraeus for mishandling classified information.

We are to believe there was much stronger evidence of knowledge and intent in Petraeus’s offense; yet, over Comey’s objection, Petraeus was permitted to plead guilty to a misdemeanor. Therefore, the story goes, Clinton could not be charged absent Petraeus-grade proof. This line of reasoning is fatuous — and it’s another instance of the Justice Department adopting Clinton campaign cant. Petreaus shared his classified diaries with a single person, a paramour who actually had a security clearance (albeit not one high enough to view what she was shown). Clinton’s offense was more extensive in duration and seriousness.

Assuming the accuracy of the Times’s account, Comey is quite right that Petraeus should have been indicted on much more serious charges (as I have contended). But the Justice Department’s dereliction in Petraeus’s case was hardly a justification for giving Clinton a pass on a more egregious offense that, unlike Petraeus’s, (a) almost certainly caused the compromise of government secrets to foreign intelligence services and (b) resulted in the destruction of tens of thousands of government records — a separate felony. Clinton’s misconduct should have been prosecuted under the governing law, not excused based on the sweetheart plea deal Petraeus got.

All that said, we’re told the FBI thought it might be able to get over the purported Petraeus hurdle if it could find e-mails to and from Clinton’s old BlackBerry. Because she was using this device right before she switched to the homebrew server, the theory was that those lost e-mails might contain some smoking-gun declaration of her criminal intent in setting up the server system. It’s as if, in a drug case, it’s not enough for agents to have the bag of heroin they found in the suspected trafficker’s house; to prove intent, you apparently also need an e-mail in which the trafficker says, “Gee, I hope there’s enough heroin in that bag I was planning to sell.”

Subpoenas for the BlackBerry service providers

In any event, there was a problem. Unlike the vast majority of information relevant to the investigation, including physical and documentary evidence, any records pertinent to the BlackBerry Clinton had been using back in 2009 were not apt to be in the possession of Clinton insiders. If they still existed at all, the records would have to be pried from the service providers — Cingular Wireless and AT&T Wireless.

In contrast to Clinton aides, telecommunications companies require a subpoena before they cooperate with law enforcement. Many of their customers are concerned about privacy and bristle at any indication that companies are sharing information with the government. Therefore, the companies need to be able to say they disclose records only when compelled by law. If the FBI wanted the BlackBerry records, subpoenas would be necessary.

The FBI did want the records. In connection with a lawsuit Judicial Watch has brought against the State Department, FBI special agent E. W. Priestap, who supervised the Clinton e-mails investigation, submitted an affidavit that states in passing, “The FBI also obtained Grand Jury subpoenas related to the Blackberry e-mail accounts.” It is the only allusion to a grand jury. According to Priestap, the subpoenas yielded “no responsive materials, as the requested data was outside the retention time utilized by [the service] providers.” This was to be expected: The FBI’s investigation did not commence until six years after Secretary Clinton stopped using the BlackBerry in mid-March 2009.

The affidavit does not indicate when the subpoena was issued. I suspect it was early in the investigation, presumably shortly after the FBI learned of the BlackBerry’s existence. It is possible, though, that the effort was not made until the investigation was reopened, two weeks before the 2016 election. That’s when a renewed and frantic effort was made to run down the BlackBerry e-mails after some of them were stumbled upon in a separate investigation of disgraced former congressman Anthony Weiner, who turned out to have shared a computer with his wife — Clinton’s close confidante, Huma Abedin. In any event, just as the subpoenas produced no evidence, the review of e-mails from the Weiner/Abedin device is said to have turned up nothing new regarding Clinton’s allegedly inscrutable state of mind.

I believe the Obama Justice Department had no intention of indicting Clinton; it wanted to help the presidential campaign by orchestrating her “exoneration” only after a thorough FBI probe. Having labored to conceal the fact that Clinton was under criminal investigation, Justice cannot have been happy about having to issue grand-jury subpoenas confirming it. But they knew three things: (a) it would have been indefensible for the FBI not to at least try to get the records; (b) there would only need to be a few subpoenas (maybe just a couple); and (c) the recipients would be telecommunications service providers, which are routinely directed to provide assistance in sensitive and even classified investigations, and which have a very strong record of not leaking. There was no real danger that the subpoenas issued would enhance the public understanding that Clinton was being investigated in connection with serious crimes.

Two final things to consider.

First, the fact that grand-jury subpoenas were issued does not necessarily mean the grand jury was actually used. Did the Justice Department ever summon witnesses to testify about the Clinton criminal investigation before the grand jury? Did the Justice Department even alert a grand jury that it had subpoenaed records on the grand jury’s authority? I’m betting there was no real presentation to the grand jury; only grudging use of grand-jury process when there was no alternative and no chance Clinton would be damaged by news coverage about it.

Second, consider what else was going on. At the very same time it was bending over backwards not to make a case on Hillary Clinton, the Justice Department was pushing very aggressively — on much thinner evidence — to try to prove that the presidential campaign of Donald Trump was in cahoots with the Putin regime. For Clinton, the Obama Justice Department ran away from the grand jury, notwithstanding that its use in investigations of obvious crimes is standard. For Trump, the Obama Justice Department ran to the FISA court, notwithstanding that its use in an investigation of the opposing political party’s presidential candidate, based on sketchy information, is extraordinary.

Russia’s apparent preference for one presidential candidate over the other is routinely described as a sinister scheme to “interfere with the election.” Fair enough. But how shall we describe the Department of Justice’s patent preference for one presidential candidate over the other?

— Andrew C. McCarthy is a senior policy fellow at National Review Institute and a contributing editor of National Review.



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