Why the Justice Department Won’t Work with the FBI on Clinton’s E-mail Case

The Justice Department routinely works with the FBI but in the case of Hillary Clinton’s e-mails has not, apparently to protect her.

Another day, another double-take reading the New York Times. The latest shoe in the investigation of Hillary Clinton’s scandalous mishandling of classified information dropped heavily this week. It had already been reported that, contrary to her denials, hundreds of secret intelligence communications were transmitted over the private, unsecured e-mail system on which the former secretary of state recklessly conducted government business. It is now clear that some of these contained “top secret/SAP” information. (SAP is “special access programs.”) This indicates defense secrets of the highest order, the compromise of which can destroy vital intelligence programs, get covert agents killed, and imperil national security.

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.” Really? Well, to put it in Clintonian terms: It all depends on what the definition of “subject” is. Though you wouldn’t know it from the Times, “subject” is a term of art in criminal investigations. It refers to one of the three categories into which prosecutors fit every relevant actor. Subjects are people whose conduct is being scrutinized and who, depending on what evidence turns up, may or may not be charged. This distinguishes them from targets, who are suspects virtually certain to be indicted for an obvious crime; and from mere witnesses, whose interaction with a suspect suggests no criminality on their part (e.g., the teller in a bank hold-up, or the neighbor awakened by a fatal gunshot next door).

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. After all, the investigation centers on her mishandling of classified information via a private e-mail system that she improperly set up for all her government business and over which she well knew it was illegal to disseminate classified information. And if recent reporting is accurate, the investigation is now delving into potential corruption: the favorable treatment donors to her private foundation were given by the State Department she was running. Given that the investigation appears to be tracking her unique activities, how could she possibly not be a subject? What would otherwise be the point of investigating? 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. How is that possible? Perhaps a bit more background on how investigations work will pierce the Clintonian fog.

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. In an ordinary case, that would not be a point worth making. The FBI routinely 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. The FBI does not have authority even to issue subpoenas, let alone to charge someone with a crime. Only federal prosecutors may issue subpoenas, on the lawful authority of the grand jury. Only prosecutors are empowered to present evidence or propose charges to the grand jury. And the Constitution vests only the grand jury with authority to indict — the formal accusation of a crime. In our system, the FBI can do none of these things.

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Source: Hillary Clinton’s E-mail Scandal — FBI Investigates First