The FBI can do better

It has been reported that many former prosecutors and FBI agents, as well as current agents off the record, have expressed extreme dissatisfaction with the FBI’s procedures and conclusions in the Hillary Clinton case. For some reason, whether it be inexperience, incompetence, political bias, poor counsel, bureaucratic restraint or some combination of these factors, the resulting investigation and decisions were deficient, to say the least. This rests not only on Director James Comey but also on the Department of Justice attorneys, who certainly were providing advice throughout the process. The public deserves a clear and concise accounting of the facts that support the belief that this was an incomplete and flawed investigation. A future attorney general, Democrat or Republican, can take steps to correct these errors.

1. The original Ethics in Government Act, followed by 28 CFR 600.1, states that an independent counsel should be appointed in any criminal investigation that presents “a conflict of interest for the Department or other extraordinary circumstances.” Janet Reno appointed such counsel six times when allegations were made against Cabinet-level officials during Bill Clinton’s administration. Virtually all of the accusations in those cases pale in comparison with the charges of massive destruction of government records and mishandling of national defense information in this case.

{mosads}2. The decision on whether to proceed in a case of this magnitude always belongs to the prosecutor, not the FBI investigator. Comey’s no-prosecution announcement can only be interpreted as an effort to take the political heat off Loretta Lynch, who at that time had retained control of the case. This clearly was not his job. The decision should have been made by a special prosecutor.

3. After State issued a formal request to preserve all work-related emails on Oct. 28, 2014, Cheryl Mills was placed in charge of determining what to hand over and what to destroy. Ms. Mills had been Hillary Clinton’s chief of staff and as such would have been in the middle of any improper or illegal activity. No one would have tolerated H.R. Haldeman or John Ehrlichman, both attorneys, editing the Nixon tapes before they were handed over, yet Ms. Mills claimed attorney client privilege when asked how she decided what would be destroyed. This was not even challenged by the DOJ. A grand jury should have been convened with a supervising judge, and her claim should have been aggressively challenged before the judge on the basis that she had been chief of staff or under the crime fraud exception. The FBI report indicates some significant percentage of 17,448 messages later found that had not been turned over by the Clinton camp were actually work-related and contained classified information. One can only guess as to how many were not recovered thanks to the later application of BleachBit and hammered destruction.

4. A grand jury was not convened to question Cheryl Mills or Hillary Clinton under oath, thereby allowing the former secretary of State to reply “I don’t recall” 37 times without serious cross examination by an experienced prosecutor or grand jurors. There appears to be little to no questioning in the report about her previous public false statements (had obtained State “permission,” turned over “all work-related emails”), the real motives behind a private server or probing about how she could recall enough to write a detailed book about her experience as secretary but could not recall the numerous warnings and briefings or her own memo on not using personal email for State business.

5. Immunity should be provided to likely targets like Ms. Mills or the IT administrator only when they have given a “proffer” listing truthful information they will provide that will be useful to the investigation. There has been no indication that the information provided was either useful or truthful.

6. Comey apparently decided to ignore the congressional statute making it a crime through gross negligence to expose closely held national defense information (18 U.S. Code 793f). Note the statute refers to national defense information: if the material is originated by someone like the secretary there is no chance to “mark it,” and the fact that thousands of messages were later found to be classified is proof they were closely held national defense information. Comey indicated before Congress that in private practice he had worked against criminalizing negligence. Yet numerous laws make negligence a crime. Regardless, it is certainly not his role as an investigator to decide what congressional laws will be ignored because of his personal preference.

7. Comey, with admitted guidance from someone at DOJ, decided to impose a willfulness standard on 18 U.S. Code 1924, the destruction of records statute, making “ignorance of the law” an excuse. As pointed out during his questioning, this mental state is not in the statute or case law applied to 1924. It is nevertheless hard to believe, based on all the State Department procedures listed in the FBI report, as well as the initial false statements, that the parties did not know they were acting improperly.

The FBI is a far better organization than what was reflected in this report.

Ron Sievert was a state prosecutor for five years and a DOJ supervisor and trial attorney for 25 years. He currently teaches national security and international law.

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