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.
The two types of inquiry are fundamentally different — dissimilar in their objectives, their processes, and their presumptions about secrecy and disclosure.
This is day-and-night different from foreign-intelligence investigations. The objective of the latter is not to target a particular person for public prosecution. It is to protect the security and interests of the American people by acquiring information about the actions and intentions of foreign powers.
Thus, the critical difference: Virtually everything involved in a foreign-intelligence investigation — its existence, any attendant court process, the information gathered, the analysis of its meaning, the methods and sources of its acquisition — is classified. When the information is collected, the presumption is that it is only for the eyes of government agents responsible for protecting national security and other American interests. In fact, even within that “community” of intelligence operatives, the information is closely held — shared only on a “need to know” basis. That is, even an agent with a top-secret security clearance is not authorized to read classified reports outside the agent’s area of responsibility.
As we’ve seen, secrecy is regarded as a necessary but temporary evil in criminal investigations — the veil is lifted once a formal charge is filed. In foreign-intelligence investigations, by contrast, secrecy is a necessary obsession. Spies, moles, and other undercover operatives could be captured or killed if their covers were blown, cutting off vital intelligence streams about hostile nations or terrorist networks. In many places where American interests are threatened but American sources are sparse, our nation relies on the cooperation of foreign governments in gathering information. The cooperation would end if it were publicized — endangering Americans.
Perhaps most important for present purposes, Americans who are caught up in foreign intelligence investigations are generally not suspected of criminal wrongdoing. If they were, they would be subjects of criminal investigations. The government is not supposed to use its foreign-intelligence collection authority as a pretext to build criminal cases. Consequently, there is an emphasis in intelligence investigations on maintaining the confidentiality of Americans whose identities or activities cross the government’s radar screen. Generally, their identities are concealed (or “masked”) even from intelligence agents working on the investigation. The investigative relevance of these Americans lies in not their own conduct, for the sake of proving them guilty; it lies in what their conduct — whether knowing or inadvertent — can tell our agencies about the plans of foreign powers that could imperil our country.
Some Americans, because of their foreign business experience or academic expertise, may be quite valuable to intelligence investigators. Other Americans may act in support of foreign powers in a manner that is transparent and wholly legitimate under U.S. law. Yet it could be ruinous to the reputations of those Americans — and to any intelligence value they may have — if it were to be publicized that they were subjects of “an FBI investigation.” There is a stigma attached to that status, a cloud of suspicion that they must be criminals if the FBI is watching them.
Therefore, the presumption is that foreign-intelligence investigations do not and should not become public — the opposite of our presumption for criminal investigations. Indeed, before FBI director James Comey’s startling public revelation (in congressional testimony) of an active investigation of possible ties between Trump associates and the Putin regime, what we knew about the investigation came from the leaking of classified information — a felony.
The Clinton e-mails caper landed in the FBI’s lap as a public scandal. Before the criminal investigation commenced, it was a controversy featuring hacking reports, Freedom of Information Act litigation, congressional investigations, and a report and referral by the intelligence community’s inspector general. Throughout the investigation, moreover, there was intense congressional and media interest, including periodic leaks from Justice Department sources sympathetic to Mrs. Clinton. Because Clinton was running for president, it was a constant campaign topic. President Obama commented on it. There simply was no avoiding the fact that the criminal investigation’s existence was publicly known.
What was not publicly known, until director Comey’s press conference on July 5, 2016, was what had been uncovered in the FBI’s investigation, and what calculations had been made about the legal merits of formally charging Clinton with crimes. Though I don’t agree with director Comey’s stated conclusions in the latter regard, I sympathize with his main concern, which was to demonstrate, in a matter of intense public interest, that the FBI had done thorough, credible investigative work.
Sympathy can go only so far, though. There are many situations in which law-enforcement officials would love to go public with investigative information they’ve learned in uncharged cases, especially when they are wrongly accused or suspected of corruption. They are not allowed to do that, however, because there are higher national interests than their own reputations — than even the FBI’s reputation.
Democrats crowed in delight over Comey’s public pronouncement that Mrs. Clinton’s case was not worthy of prosecution. The pronouncement flouted law-enforcement protocols, yet Democrats made it a centerpiece of their 2016 political campaign. Had they not done so, they would have a point in complaining about the FBI director’s highly irregular public description of the damning evidence amassed against an uncharged suspect. They’d be in the right to cry “foul” over his subsequent updates about the reopened and swiftly reclosed status of the investigation in letters to Congress in the two weeks prior to Election Day. As observed above, we endorse secrecy in criminal investigations mainly to uphold the presumption of innocence that is rooted in the Fifth Amendment’s promise of due process. That is why law-enforcement officials are not supposed to acknowledge the existence of an investigation or reveal its findings unless and until they level a formal accusation in court.
But let’s pretend that Democrats had been victims wronged, rather than opportunists advantaged, by director Comey’s public statements. There would still be no good-faith basis to protest the FBI’s proper adherence to secrecy rules in the foreign-intelligence investigation of purported ties between Trump associates and Russia. There is no equivalence between criminal and intelligence investigations — the former expected to result in public disclosures, the latter classified and presumed secret. To claim otherwise is to elevate politics over national security . . . or to be just plain dumb.