Politics & Policy

In Politicized Justice, Desperate Times Call for Disparate Measures

Former FBI Director James Comey at a news conference in 2014. (Brian Snyder/Reuters)
FBI director Comey and the Obama Justice Department applied a double standard in their handling of the Clinton-email and Trump–Russia investigations.

We wuz robbed. That’s the theme Democrats and their media allies are working hard to cement into conventional wisdom. And robbed in a very specific way: The 2016 presidential election, we’re to believe, was stolen from Hillary Clinton by disparate treatment. As Democrats tell it, the FBI scandalized their candidate while protecting Donald Trump.

You might think peddling that story with a straight face would be a major challenge. But they figure it may work because it was test-driven by the FBI’s then-director, James Comey, in his now infamous press conference on July 5, 2016 — back when the law-enforcement and intelligence apparatus on which we rely to read the security tea leaves was simply certain that Mrs. Clinton would win.

If you or I had set up an unauthorized private communications system for official business for the patent purpose of defeating federal record-keeping and disclosure laws; if we had retained and transmitted thousands of classified emails on this non-secure system; if we had destroyed tens of thousands of government records; if we had carried out that destruction while those records were under subpoena; if we had lied to the FBI in our interview — well, we’d be writing this column from the federal penitentiary in Leavenworth. Yet, in a feat of dizzying ratiocination, Director Comey explained that to prosecute Mrs. Clinton would be to hold her to a nitpicking, selective standard of justice not imposed on other Americans.

So it was that the New York Times, in this week’s 4,100-word exposé on the origins of the FBI’s Trump–Russia probe, recycled the theme: Government investigators were savagely public about Clinton’s trifling missteps while keeping mum about the Manchurian candidate’s treasonous conspiracy with Putin.

As we contended in rebuttal on Thursday, the Times’ facts are selective and its narrative theme of disparate treatment is hogwash: Clinton’s bid was saved, not destroyed, by Obama’s law-enforcement agencies, which tanked a criminal case on which she should have been indicted. And the hush-hush approach taken to the counterintelligence case against Donald Trump was not intended to protect the Republican candidate; it was intended to protect the Obama administration from the specter of a Watergate-level scandal had its spying on the opposition party’s presidential campaign been revealed.

But let’s put that aside. Let’s consider the disparate-treatment claim on its own terms.

The DNC Server
It has now been confirmed that the Trump campaign was subjected to spying tactics under counterintelligence law — FISA surveillance, national-security letters, and covert intelligence operatives who work with the CIA and allied intelligence services. It made no difference, apparently, that there was an ongoing election campaign, which the FBI is supposed to avoid affecting; nor did it matter that the spy targets were American citizens, as to whom there is supposed to be evidence of purposeful, clandestine, criminal activity on behalf of a foreign power before counterintelligence powers are invoked.

But what was the rationale for using these spying authorities?

The fons et origo of the counterintelligence investigation was the suspicion — which our intelligence agencies assure us is a fact — that the Democratic National Committee’s server was hacked by covert Russian operatives. Without this cyber-espionage attack, there would be no investigation. But how do we know it really happened? The Obama Justice Department never took custody of the server — no subpoena, no search warrant. The server was thus never subjected to analysis by the FBI’s renowned forensics lab, and its evidentiary integrity was never preserved for courtroom presentation to a jury.

How come? Well, you see, there was an ongoing election campaign, so the Obama Justice Department figured it would be a terrible imposition to pry into the Democrats’ communications. So, yes, the entire “Russia hacked the election” narrative the nation has endured for nearly two years hinges on the say-so of CrowdStrike, a private DNC contractor with significant financial ties to the Clinton campaign.

In Investigations 101, using foreign-intelligence authorities to spy on Americans is extraordinary, while taking custody of essential physical evidence is basic. By the way, the government’s failure to ensure the evidentiary integrity of the DNC server by taking possession of it and performing its own rigorous testing on it makes it practically impossible to prosecute anyone for “colluding” in Russia’s cyber-espionage. It’s tough to prove that anyone conspired in something unless you can prove beyond a reasonable doubt that the something actually happened the way you say it happened. To do that in a courtroom, you need evidence — a confident probability analysis by your intelligence agencies won’t do.

The Espionage Act v. the Logan Act
Here is then-director Comey’s explanation of why Mrs. Clinton should not be indicted for patent felony violations of the Espionage Act’s provisions on mishandling classified information:

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

This statutory analysis is gibberish. Notwithstanding that Mrs. Clinton’s actions were intentional and willful, the Espionage Act does not require proof of that mental state. Despite considerable evidence that she obstructed investigations, it’s not necessary to prove that either. Nor to establish disloyalty or any intent to harm the United States. To avoid indicting Mrs. Clinton, the FBI and Justice Department ignored the statute that has been on the books for a century and substituted an impossible-to-prove statute of their imagination.

Now, let’s consider a statute that’s been on the books for over two centuries, the Logan Act.

The Logan Act is patently unconstitutional, but no court has had the opportunity to invalidate it because, to borrow a phrase, no reasonable prosecutor would bring such a case.

Despite the absence of any evidence that the Trump campaign conspired in Russia’s espionage, the Obama Justice Department — led by then–acting attorney general Sally Yates — relied on the Logan Act to conduct a criminal investigation of General Michael Flynn, a 30-year decorated combat veteran. A key Trump campaign adviser who played a central role in the Trump transition and was designated as the incoming national-security adviser, it was Flynn’s job to communicate with such foreign counterparts as Russian ambassador Sergey Kislyak, a Washington fixture whose dance card has never been short on Democrats. Flynn was also an intense Obama critic, and the outgoing administration understood that he was preparing to reverse Obama policies.

The Obama Justice Department and FBI investigated Flynn — including an ambush interview — on the theory that his discussions with Kislyak and other diplomats violated the Logan Act. Currently codified as Section 953 of the federal penal code, this statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States” — an impossibly vague term that probably means permission from the executive branch. The Logan Act is patently unconstitutional, but no court has had the opportunity to invalidate it because, to borrow a phrase, no reasonable prosecutor would bring such a case. As our Dan McLaughlin has explained, the Act dates to 1799, a dark time for free-speech rights during the John Adams administration. Never in its 219-year history has it resulted in a single conviction; indeed, there have been only two indictments, the last one in 1852.

By contrast, there have been several prosecutions under the Espionage Act, including several convictions of military personnel prosecuted under the same provisions at issue in Mrs. Clinton’s case — although their misconduct was far less extensive.

Incidentally, in the ambush interview, Flynn, without counsel and apparently unaware that he was being questioned as a suspect, was grilled about what was said in a conversation with Kislyak. There was no intelligence need to do this because the FBI had a recording of the conversation. The agents who questioned Flynn, including counterespionage specialist Peter Strzok, determined that Flynn did not lie to them.

He was later prosecuted by the special counsel for lying to the FBI.

Truth or Consequences
Speaking of lying to the FBI, Mrs. Clinton — during the brief interview the FBI conducted after Director Comey’s speech exonerating her was already written — told agents she did not know what the designation “(C)” in classified documents meant. She claimed to have assumed it might have had something to do with putting paragraphs in alphabetical order, notwithstanding the absence of any (A), (B), or (D) paragraphs.

Patently, this was a false statement: Mrs. Clinton, who was in the Senate for eight years, was indoctrinated in classified-information practice on becoming secretary of state, a position in which classified documents abound. She signed an acknowledgment that she understood her obligations and had read the relevant executive orders on classification — the main one had been issued by her husband. (C), which stands for confidential, the lowest level of classification, is a ubiquitous marking in classified documents, well known to officials with security clearances. But Mrs. Clinton had falsely told the public she had never sent or received any documents “marked classified,” so she needed to pretend that she didn’t know what the classified markings meant.

She wasn’t prosecuted, of course. She got to run for president. Her underlings weren’t prosecuted either — Clinton confidants Cheryl Mills and Huma Abedin both told the FBI they were unaware that Clinton was using a private server while they worked for four years as her top State Department staffers; as the Daily Caller’s Chuck Ross points out, Mills explicitly asked Abedin about the server in a 2010 email.

Paul Combetta, the Platte River Networks technician who serviced Clinton’s homebrew server and applied the “BleachBit” program to destroy tens of thousands of her emails, lied to the FBI in his initial interviews; far from being prosecuted in order to squeeze him for cooperation, he was given immunity. With no fear that there was any interest in prosecuting him, Combetta proceeded to tell a risible story about why he destroyed the emails, transparently protecting Clinton and her subordinates.

That’s not quite the way things go in the Trump–Russia investigation. General Flynn and three other subjects — George Papadopoulos, Richard Gates, Alex van der Zwaan — have been prosecuted for making false statements in FBI interviews. None of the false statements alleged had anything to do with Russia’s cyber-espionage attack on the 2016 election, the ostensible subject matter of Mueller’s investigation. (Unlike the Clinton probe, where the defense lawyers worked closely with the Justice Department, the defense lawyers in the Trump probe are not allowed to know the scope of Mueller’s investigative authority.)

Immunity v. Scorched Earth
The Obama Justice Department’s failure to compel production of the DNC’s server by subpoena or warrant was not an aberration — at least when it came to Democrats. It was standard practice in the Clinton-emails investigation to resist use of the grand jury; to negotiate with custodians over the production of essential evidence that could easily have been compelled by grand jury subpoena (such as the laptops used by Cheryl Mills and Heather Samuelson to vet Mrs. Clinton’s 60,000 emails). If there seemed any possibility that physical evidence could contain incriminating information, the custodian was granted immunity from prosecution.

The indulgence of attorney–client claims to impede investigators was especially egregious in the Clinton-emails case because it was a flagrant violation of professional rules and federal law.

In stark contrast, the Virginia home of Paul Manafort, Trump’s former campaign chairman, was raided by the FBI in the predawn hours. Special Counsel Mueller’s prosecutors convinced a judge to authorize a no-knock entry — essentially, a break-in — prior to 6 a.m. Agents entered with guns drawn while Manafort and his wife were in bed asleep. The couple was ordered out of bed and detained, while agents searched their home and seized voluminous documents. At the time, Manafort was voluntarily cooperating with congressional investigators, had provided testimony and documents to one committee the day before, and was scheduled to do the same with a different committee later on the day of the raid. Manafort was also represented by prominent Washington defense counsel, who would willingly have accepted service of a subpoena and produced the materials sought by the special counsel.

The special counsel decided even-handed justice would be better served by a frightening raid in which agents got to grab whatever they chose to grab.

Attorney–Client Privilege or Privileged Client’s Attorneys?
One is tempted to say that Mrs. Clinton, a Yale-educated lawyer, frustrated the probe of her email scandal by inserting lawyers at every critical phase — her work at the State Department; her retention, review, and destruction of emails; her flouting of a congressional subpoena demanding emails; her FBI interview. But to say that the probe was “frustrated” would imply that Obama Justice Department officials were serious about investigating and prosecuting Clinton, which they manifestly were not. Justice Department lawyers worked closely with Clinton’s counsel to restrict what questions the FBI would be permitted to ask and what physical evidence agents would be permitted to examine. This was the attorney–client privilege on steroids, invoked at every turn to close off basic lines of inquiry.

This would not be tolerated in any normal case. A person’s status as a lawyer is not immunity from investigation or prosecution. The attorney–client privilege covers only private communications in the nature of legal advice; and if the lawyer and client are involved in a criminal or otherwise fraudulent scheme, their conversations are not privileged.

But the indulgence of attorney–client claims to impede investigators was especially egregious in the Clinton-emails case because it was a flagrant violation of professional rules and federal law. Attorneys Cheryl Mills and Heather Samuelson worked for Clinton at the State Department and were deeply involved in determining which emails Clinton surrendered to the State Department and which she destroyed. Canons of professional ethics forbid a lawyer from taking on representation of a client if the lawyer is an actor in the facts under investigation. They bar a lawyer who is a former government official from representing clients in matters in which the lawyer was involved while working for the government. Moreover, it is a federal crime (under Section 207 of the penal code) for a former government official to attempt to influence the government on behalf of another person in a matter in which the former official was heavily involved while working for the government.

Despite all of that, the Justice Department and FBI not only failed to object to Mills’s and Samuelson’s representation of Clinton; they permitted these lawyers to sit in as counsel representing Clinton in her FBI interview — during which she was questioned about activities undertaken with Mills and Samuelson.

Is this how things work in the Trump–Russia investigation? Not exactly. Mueller has gone to court to force one lawyer to testify against her clients Manafort and Gates. Another Manafort and Gates lawyer, Alex van der Zwaan, has been convicted for making false statements about a conversation with Gates. In the related case of Michael Cohen, President Trump’s lawyer and self-proclaimed “fixer,” FBI agents raided his residences and office, executing search warrants procured by federal prosecutors in New York.

What Does It ‘Matter’?
As the 2016 race heated up, the Clinton campaign zealously fought the notion that Hillary was the subject of a criminal investigation — which is not an easy thing to do when you’re the subject of a criminal investigation. It was just a “security referral,” the campaign insisted to the New York Times (which dutifully “corrected” its originally correct reporting on the case).

It is against Justice Department policy to confirm the existence of an investigation, especially counterintelligence investigations, which are classified.

In what I’m sure was a total coincidence, Attorney General Loretta Lynch, who stood a very good chance of keeping her coveted job in a Hillary Clinton administration, gave FBI Director Comey an order: In his public statements and testimony, he was instructed to refer to the Clinton emails probe as a “matter,” not an investigation — otherwise, what might people think the Federal Bureau of Investigation was up to? This may have been an improper, politically motivated attempt to influence an FBI criminal probe, but on this occasion, there were no leaks to the New York Times about it; Comey complied, calculating that Lynch’s politicization of the, er, “matter” was not “a hill worth dying on.”

The director’s sympathetic savvy was again on display in the writing of his speech exonerating Mrs. Clinton. There was, of course, the delicate matter of President Obama’s knowing exchanges of sensitive email via Clinton’s server. The initial draft’s reference to “the President” was soon watered down to “a senior government official.” In the end, it was dropped altogether — purging any reference to Obama’s involvement. And of course, the director’s description of Clinton’s conduct as “grossly negligent” was amended to “extremely careless” because gross negligence is the mental state required for conviction in the Espionage Act — after all, this was this was supposed to be an exoneration statement, not an indictment.

The director took a markedly different tack in the Trump–Russia investigation. Here is the key section of his House testimony on March 20, 2017:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

It is against Justice Department policy to confirm the existence of an investigation, especially counterintelligence investigations, which are classified. Director Comey would have had to lobby hard to get authorization for this statement . . . although perhaps not too hard since Attorney General Jeff Sessions had by then recused himself from the Trump–Russia probe, leaving no other confirmed Trump appointees at the time — the Trump-Russia investigation was being overseen by Obama holdovers.

It is never proper to announce that American citizens are persons of interest in a counterintelligence probe. Since the purpose of such a probe is to gather intelligence, not to prosecute, it would be deeply misleading and prejudicial to speak of such persons as the focus of an FBI investigation. And it was sheer gratuitousness to cap off this testimony with Comey’s observation that there would be “an assessment of whether any crimes were committed.” That is not a regular part of a counterintelligence investigation (it is simply a fact that when investigators stumble upon evidence of a crime, they need not ignore it — something that is always true and therefore never has to be said).

At the time he made this statement, Director Comey had repeatedly assured President Trump that he was not a criminal suspect. As would have been known by any sensible person, and particularly one as sophisticated as Comey, this astonishing congressional testimony by an FBI director can only have signaled to the media and the public that the president of the United States was under investigation for serious crimes.

But other than that, I suppose you could say the Justice Department and the FBI handled the Clinton and Trump cases exactly the same way. Equal justice under the law, right?


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