What is the FBI hiding?The bureau has conspired to keep Congress in the
dark about its Clinton probe

By Andrew P. Napolitano <http:///staff/andrew-p-napolitano/>


Earlier this week, Republican leaders in both houses of Congress took the
FBI to task for its failure to be transparent. In the House, it was
apparently necessary to serve a subpoena on an FBI agent to obtain what
members of Congress want to see, and in the Senate, the chairman of the
Judiciary Committee accused the FBI itself of lawbreaking.

Here is the back story.

Ever since FBI Director James Comey announced on July 5 he was recommending
that the Department of Justice not seek charges against former Secretary of
State Hillary Clinton as a result of her failure to safeguard state secrets
during her time in office, many in Congress have had a nagging feeling that
this was a political, not a legal, decision. The publicly known evidence of
Mrs. Clinton’s recklessness and willful failure to safeguard secrets was
overwhelming. The evidence of her lying under oath about whether she
returned all her work-related emails that she had taken from the State
Department was profound and incontrovertible.

And then we learned that people who worked for Mrs. Clinton were instructed
to destroy several of her mobile devices and to remove permanently the
stored emails on one of her servers. All this was done after these items
had been subpoenaed by two committees of the House of Representatives.

Yet the FBI — which knew of the post-subpoena destruction of evidence and
which acknowledged that Mrs. Clinton failed to return thousands of her
work-related emails as she had been ordered by a federal judge to do,
notwithstanding at least three of her assertions to the contrary while
under oath — chose to overlook the evidence of not only espionage but also
obstruction of justice, tampering with evidence, perjury and misleading

As if to defend itself in the face of this most un-FBI-like behavior, the
FBI then released to the public selected portions of its work product,
which purported to back up its decision to recommend against the
prosecution of Mrs. Clinton. Normally, the FBI gathers evidence and works
with federal prosecutors and federal grand juries to build cases against
targets in criminal probes, and its recommendations to prosecutors are

But in Mrs. Clinton’s case, the hierarchy of the Department of Justice
removed itself from the chain of command because of the orchestrated
impropriety of Attorney General Loretta E. Lynch and Bill Clinton, who met
in private on the attorney general’s plane at a time when both Bill and
Hillary Clinton were subjects of FBI criminal investigations. That left the
FBI to have the final say about prosecution — or so the FBI and the
Department of Justice would have us all believe.

It is hard to believe that the FBI was free to do its work, and it is
probably true that the FBI was restrained by the White House early on.
There were numerous aberrations in the investigation. There was no grand
jury; no subpoenas were issued; no search warrants were served. Two people
claimed to have received immunity, yet the statutory prerequisite for
immunity — giving testimony before a grand or trial jury — was never

Because many members of Congress do not believe that the FBI acted free of
political interference, they demanded to see the full FBI files in the
case, not just the selected portions of the files that the FBI had
released. In the case of the House, the FBI declined to surrender its
files, and the agent it sent to testify about them declined to reveal their
contents. This led to a dramatic service of a subpoena by the chairman of
the House Oversight and Government Reform Committee on that FBI agent while
he was testifying — all captured on live nationally broadcast television.

Now the FBI, which usually serves subpoenas and executes search warrants,
is left with the alternative of complying with this unwanted subpoena by
producing its entire file or arguing to a federal judge why it should not
be compelled to do so.

On the Senate side, matters are even more out of hand. There, in response
to a request from the Senate Judiciary Committee, the FBI sent both
classified and unclassified materials to the Senate safe room. The Senate
safe room is a secure location that is available only to senators and their
senior staff, all of whom must surrender their mobile devices and writing
materials and swear in writing not to reveal whatever they see while in the
room before they are permitted to enter.

According to Sen. Chuck Grassley, chairman of the Senate Judiciary
Committee, the FBI violated federal law by commingling classified and
unclassified materials in the safe room, thereby making it unlawful for
senators to discuss publicly the unclassified material.

Imposing such a burden of silence on U.S. senators about unclassified
materials is unlawful and unconstitutional. What does the FBI have to hide?
Whence comes the authority of the FBI to bar senators from commenting on
unclassified materials?

Who cares about this? Everyone who believes that the government works for
us should care because we have a right to know what the government — here
the FBI — has done in our names. Mr. Grassley has opined that if he could
reveal what he has seen in the FBI unclassified records, it would be of
profound interest to American voters.

What is going on here? The FBI investigation of Hillary Clinton has not
served the rule of law. The rule of law — a pillar of American
constitutional freedom since the end of the Civil War — mandates that the
laws are to be enforced equally. No one is beneath their protection, and no
one is above their requirements. To enforce the rule of law, we have hired
the FBI.

What do we do when the FBI rejects its basic responsibilities?

• *Andrew P. Napolitano, a former judge of the Superior Court of New
Jersey, is a contributor to The Washington Times. He is the author of seven
books on the U.S. Constitution.*

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