If you’re like most people, your mental concept of the investigation of Hillary Clinton’s Emailgate has probably involved a hazy idea that standard things are being done. I know that’s been the image in my head — to the extent I’ve given it any thought.
The story line goes: Department of Justice has the FBI investigate something, with the idea that a grand jury may be convened and an indictment may be sought. A federal prosecutor is at the helm. His or her office would at some point be talking to us, explaining decisions about charges and prosecution.
That’s the normal way of things. It’s how our system works. But it hadn’t really registered with me that we have not heard from a federal prosecutor.
Will this presidential election be the most important in American history?
Andrew McCarthy has a must-read piece at NRO today, pointing this out. His fine-tuned prosecutor’s radar keyed on this point from the wording of a recent New York Times article on the investigation of Hillary’s rogue email server. The article was, as he puts it, unusually careful to stress the following:
Yet, in reporting the story, the Times’ Mark Mazzetti took pains to stress: “The government has said that Mrs. Clinton is not a subject of the investigation.”
McCarthy recognizes that it seems kind of crazy to anyone with common sense, to stress that Hillary Clinton is not a subject of an investigation that’s all about something she did.
But that’s the clue that there’s no standard DOJ process going on. In a formal sense — a prosecutor’s sense — there can only be a “subject” if there’s a judicial process being pursued. And there isn’t one.
McCarthy explains:
If someone’s conduct is being investigated for potential wrongdoing, it is safe to assume that person is a subject of that investigation. Thus understood, Mrs. Clinton is not only a subject; she is the main subject. …
Yet the Times’ report does not just deny that Mrs. Clinton is a subject. Echoing the Clinton presidential campaign, it claims that the government itself says she is not a subject. …
First, there is one other thing you should know about the designations “target” and “subject” — one of those things so obvious it is easy to miss. These are not just random words. They indicate that a suspect is a target or a subject of something.
That something is a grand-jury investigation. …
Only federal prosecutors may issue subpoenas, on the lawful authority of the grand jury. …
No Justice Department, no grand jury. No grand jury, no case — period.
Read the whole piece (especially for elucidation of the freighted word “subject”). McCarthy’s basic thesis is that the Obama administration’s adamant insistence on wording — Hillary Clinton is not a subject of the investigation — signals that the investigation might well turn out to be an exercise in futility, no matter what it uncovers. The Obama DOJ is holding itself aloof, for political purposes at the very least.
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.
McCarthy does an important service here, highlighting that the administration is hedging its bets on this. DOJ is currently hands off. The public may be used to hearing from the FBI without thinking much about the prosecutorial work going on behind the scenes — but that work is normally happening. The baseline institutional set-up is that the FBI responds to the prosecutorial priorities of the Attorney General, not the other way around.
That’s not the case here, however.
There’s been a flurry of recent reporting on the potential for an “FBI revolt” if Attorney General Loretta Lynch ignores an FBI recommendation for an indictment out of the Hillary-email investigation. But as McCarthy clarifies, the FBI is soldiering on by itself — and if it ends up recommending charges that never get brought, there’s no guarantee of much of a DOJ paper trail to peruse afterward. Stressing certain words to the most faithful scribes in the media, and not opening a formal process, are the Obama administration’s methods of shaping expectations about that very prospect.
McCarthy doesn’t think the administration can get away with it; he thinks FBI Director James Comey is smart enough to get justice in spite of politics. We’ll see. If Comey can do that with Hillary Clinton, while Obama is still in the Oval Office, he’ll be a rare specimen indeed.
