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The FBI Takes a Mulligan

Last week the FBI announced that it was reopening the investigation into Hillary Clinton’s use of a private unsecured email system while she was secretary of state and separately reviving the investigation into possibly illegal actions by her and her staff related to donations to the Clinton Foundation in those same years.

It’s no wonder that the FBI wants to “take a Mulligan” on both. The FBI’s — meaning then-FBI director James Comey’s — bizarre exoneration of Clinton in the former and the Bureau’s burial of the latter investigation have done more damage to the FBI’s reputation than any other incidents in its history.

A Justice Department Inspector General investigation into the Clinton email mess will soon highlight the ugly facts. That is probably the reason for the revivals.

Each set of facts — one certainly describing criminal conduct and the other likely so — are worth revisiting.

When Obama chose Clinton as his secretary of state she ordered the creation of a separate “Clintonmail” system on a server left over from her abortive 2008 presidential campaign. The reason for it was obvious. Government emails are archived and eventually released to reporters and historians. Clintonmail, a non-government system, was intended to prevent the public — and prosecutors — from ever seeing her communications.

Although she was told not to do so by State Department IT people, Clinton used her private system to conduct State Department business. Thousands of the emails sent and received on the “Clintonmail” system contained highly classified information, including SI/TK (top-secret satellite intelligence) and SAP (top secret information on covert operations).

The U.S. criminal code, specifically 18 US Code Section 793(f), makes it a felony, punishable by up to ten years in prison, to handle classified information in a “grossly negligent” manner. Clinton and her staff did this routinely by sending and receiving secret and top-secret information over the Clintonmail system.

We don’t know but have to assume that then-President Obama discussed highly classified information in emails with Clinton on her private system. We know, from an email from one of the executives at the Platte River company, which had been hired by Clinton to run her Clintonmail system, that the server on which it ran was totally unsecured and vulnerable to even the least-skilled hacker who wanted to penetrate it.

Obama, in an October 2015 60 Minutes interview, said that Clinton’s private emails didn’t endanger national security. In short, he was telling the FBI how its investigation should turn out. And it obeyed.

Flash forward to Comey’s infamous July 2016 press briefing in which he told the media that although Clinton and her staff treated classified information with “extreme carelessness,” there was no intent to harm national security and thus no prosecutable case. Section 793(f) has no intent requirement in its definition of the crime.

We know that Comey began drafting the memo he read in that July statement long before the key witnesses — and Clinton herself — were interviewed. We also know that at the suggestion of Peter Strzok, one of the FBI’s top agents assigned to the matter, Comey’s original draft had been changed. Comey had used the term “gross negligence” and changed it to say “extreme carelessness.”

Strzok was the agent later fired by Robert Mueller for writing emails to his mistress, an FBI lawyer, that showed his anti-Trump bias.

We also know that, in earlier stages of the investigation (which then-Attorney General Loretta Lynch ordered Comey to refer to as a “matter” instead of an investigation), immunity agreements were handed out to Clinton staffers as freely as Halloween candy.

Clinton’s chief of staff, Cheryl Mills, received an immunity agreement as did others including John Bentel and Heather Samuelson. Clinton’s State Department IT employee Brian Pagliano, who had been paid separately by Clinton to run the Clintonmail system, also received an immunity agreement as did Paul Combetta, an employee of the Platte River company.

Others involved may also have been granted immunity, though those agreements haven’t been reported.

Immunity agreements are rare. They are supposed to be granted only to witnesses whose testimony is critical to the case and cannot otherwise be obtained. They are made on the basis of a proffer of evidence, usually before a grand jury. But no grand jury was ever empaneled to pursue the Clintonmail investigation. The immunities were granted by Comey’s crew, intending to prevent the staffers’ prosecution for their participation in the evident crimes.

One who may not have received immunity was Huma Abedin, Clinton’s “body woman.” As the Daily Caller reported, Abedin routinely forwarded sensitive (classified) State Department emails, including passwords to government systems, to her personal Yahoo mail account. Many of them, including classified information, were found on her then-husband Anthony Weiner’s laptop. Weiner had no security clearance whatsoever. (He has since been sentenced for sending obscene materials to a minor.)

Mrs. Clinton’s eventual FBI interview was not under oath. It wasn’t recorded, as interviews are required to be under FBI procedures. Cheryl Mills was permitted to attend Clinton’s interview as part of Clinton’s legal defense team, though she — as a material witness and co-conspirator — was barred by FBI procedures (and as lawyer’s ethics require) from doing so.

Congressional investigators have said that they have found written evidence that the FBI believed the law was violated in Clinton’s (or her staff’s) trafficking in classified information on her private email system.

All of that adds up to Comey’s statement exonerating Clinton being intentionally and egregiously wrong.

If the Justice Department is serious about reopening this investigation — and Attorney General Sessions absolutely should be — a team of prosecutors should be assigned to it, a grand jury empaneled, and the evidence presented to that panel. That will inevitably lead to the indictment of Hillary Clinton and some of her top staff.

This would not be a political prosecution, as the media will shriek. It is about equal justice under the law and nothing more.

Michael Horowitz, the Justice Department’s Inspector General, is reportedly preparing to release in March or April the report of his own investigation into how the FBI handled the Clinton email investigation. The report is expected to outline how wrongful and badly biased the FBI’s actions were in Clinton’s favor.

The Clinton Foundation matter is far more complicated. Nevertheless, it should be investigated and, if appropriate, prosecuted with equal vigor.

We know that while Clinton was secretary of state, donors to the Clinton Foundation were given access to her while many others having business before the secretary weren’t. That is enough to raise the suspicion that she and her staff were selling access.

During Clinton’s tenure at the State Department, an agreement, in which twenty percent of American uranium production capacity was sold to a company under Russian control named Uranium One, was approved by the Committee on Foreign Investment in the U.S. — CFIUS — while Clinton was secretary of state. The State Department is a member of CFIUS and would have had a major influence on approval of the agreement.

As the New York Times reported in 2015, behind the Uranium One deal were several leaders of the Canadian mining industry who had been donors to the Clinton Foundation. Uranium One’s chairman used his own family foundation to donate $2.35 million to the Clinton Foundation.

Unsurprisingly, shortly after the Russians announced their intention to buy Uranium One and its twenty percent of our uranium production, Bill Clinton was paid $500,000 for a speech given in Moscow. Putin called Bill to thank him for the speech.

The company that cut the check to Bill — Russia-based Renaissance Capital — was apparently tied to the scandal that spurred Congress to consider the “Global Magnitsky Act” sanctions against Russian human rights violators. At about the same time, Hillary was stating her opposition to the “Global Magnitsky Act” legislation.

The federal bribery statutes — e.g., 18 US Code Section 201 — make it illegal to corruptly give a federal official anything of value in order to get the official to perform or refrain from performing any official act, or for such an official to seek or accept anything for either purpose.

That’s a tough legal standard to meet. But the Supreme Court has held that there need not be a direct quid pro quo proved, only a nexus between the bribe and the action or inaction. Still, proving that nexus is going to be very tough with uncooperative witnesses here and some unreachable witnesses abroad. Not to mention the tens of thousands of Clintonmail emails that were first hidden from the government and then erased permanently using the “BleachBit” program.

Clinton and her staff were all “public officials” within the meaning of the relevant laws. It’s going to be up to the investigators — and the evidence brought before a grand jury if one is empaneled — to determine their culpability. Given the complexity of the relationships involved — Hillary and her staff, Bill Clinton and his, as well as their daughter Chelsea’s actions — and the thousands of actions they took separately and collectively during Clinton’s four-year tenure as secretary of state, there’s a lot to investigate.

It is essential that these investigations and possible prosecutions proceed because there is too much at stake. The sanctity of our nation’s most closely held secrets was contemptuously violated in acts the law punishes as felonies. It is possible, and likely, that Clinton’s actions as secretary of state were the result of bribes in the form of donations to her family foundation, in speech fees paid to her husband, and a lot more.

These investigations need to go forward in the hands of people unbiased by their political beliefs. It is important for us to regain our trust in the FBI, but that’s not the most important part of it.

Again, this isn’t some sort of political vendetta being brought before the courts. America is a nation of laws and unless we’re going to be comfortable as a banana republic — exempting or prosecuting people for their political beliefs — Hillary Clinton has to be investigated fairly by unbiased people and prosecuted if they determine the evidence justifies such action.

My pal J.J O’Connor raised what may be the ultimate question. Hillary is a former first lady. If she goes to jail, would the Secret Service have to occupy an adjoining cell to protect her? One wonders.

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