In the wake of the latest damaging disclosure that 22 Hillary Clinton emails contain such highly classified information that they must not be released even in redacted form, President Obama’s spokesman Josh Earnest was questioned about whether the White House was concerned over her potential indictment. Earnest told reporters, “That’s not something I’m worried about.”
Why not? To explain, Earnest resorted to a now familiar Clinton campaign subterfuge:
That will be a decision that will be made by the Department of Justice. Some officials have said she is not the target of the investigation and it does not seem to be the direction in which it is trending.
Let’s put aside for now Earnest’s potentially explosive intimation that the White House has knowledge of the “direction” in which the Justice Department’s thinking is “trending” in Clinton’s case. It would be scandalous (or should I say, “even more scandalous”) if the purportedly independent law-enforcement officials were reporting to and being influenced by political officials in the conduct of an investigation. (Of course, I have been arguing since 2009 that this is the way things work in the Obama administration, but it is always bracing when a White House official says it – and so matter-of-factly.)
For the moment, the Justice Department, with the exception of its semi-autonomous FBI component, does not appear to have much involvement at all in the Clinton investigation. Thus, until proven otherwise, we should take Earnest’s meanderings about what the Justice Department is thinking to be a deduction based on the other “fact” he spouted: namely, Mrs. Clinton “is not the target of the investigation.”
This is the very same sleight-of-hand I wrote about in last weekend’s column, after the New York Times insisted, purportedly based on assurances by “the government” (not further specified) that Mrs. Clinton is not the “subject” of an investigation that is all about Mrs. Clinton’s activities.
To repeat, “target” and “subject” are terms of art in criminal investigations. A target is someone who is almost certain to be charged; a subject is someone who may or may not be charged depending on what the investigation uncovers. For present purposes, more significant than these designations is the thing that a suspect is a “target” or “subject” of: the grand jury.
Only the grand jury can indict someone. And only Obama’s Justice Department can convene a grand jury – the FBI has no power to do that. As our self-proclaimed constitutional-scholar president knows, if the Obama Justice Department does not convene a grand jury, present the evidence the FBI is amassing to the grand jury, and propose an indictment for the grand jury’s consideration, no one – no matter how blatantly guilty she appears to be – is a “target.” It is the grand jury that does the targeting.
The Obama White House has always been all about shaping public perception, often in defiance of reality. Thus, the White House would have you believe Earnest was addressing the strength of the case against Hillary Clinton. But in reality, he was exploiting (a) the inertia of Obama’s incorrigibly politicized Justice Department, and (b) the public’s unawareness of what it means, technically speaking, to be the “target” of an investigation.
I put it this way in the column:
[Ordinarily,] the FBI … conducts major investigations in collaboration with Justice Department prosecutors — usually from the U.S. attorney’s office in the district where potential crimes occurred. That is because the FBI needs the assistance of a grand jury…. No Justice Department, no grand jury. No grand jury, no case — period….
[R]egular criminal-justice procedures have been suspended by the explosive politics of the Clinton investigation. The FBI is doing its professional, apolitical best to investigate the presumptive Democratic nominee for president of the United States. The high stakes rattle not only the Clinton campaign but also the Democratic administration in which Mrs. Clinton worked when she engaged in the work-related conduct being investigated. On the one hand, the Obama administration does not want to be seen by the public as obstructing the FBI; on the other hand, President Obama does not want to be seen by his base as tanking the Democrats’ best shot at retaining the White House — the likely fallout if the Obama Justice Department signals that a formal, very serious criminal investigation is underway.
So Obama is hedging his bets. He is letting the FBI investigate, but on its own, without Justice Department prosecutors and the grand jury. This frees the administration and the Clinton campaign to be, by turns, ambiguous and disingenuous about whether there really is a formal investigation going on. As long as it is only the FBI doing the digging, everyone can play along with the farce: The investigation is very “preliminary,” it doesn’t even have “subjects,” [much less “targets,’] and it may even be a Vast Right-Wing Conspiracy sabotage (in which, somehow, the saboteurs are Obama appointees and non-political law-enforcement agents).
The FBI, led by an extremely able director, is doing a very thorough investigation. As a prosecutor, I convicted many people on a lot less evidence than what news reports indicate exists against Mrs. Clinton – and that’s without factoring in how relatively prosecution-friendly the penal laws criminalizing the mishandling of classified information are. But for present purposes, we understand that the FBI has not completed its investigation and presented it to the Justice Department with the expected recommendation that a grand jury be convened and an indictment sought.
Until that happens, pay no attention to anything anyone says about “targets” and “subjects.”