Don't Be Fooled: Hillarygate Probe Is Now a Formal Federal Criminal Investigation
The NY Times and the Wall Street Journal both reported on Monday morning that an FBI warrant application to a federal judge over the weekend for permission to search Huma Abedin's emails and laptop had been granted. The application was made on the basis of the Clinton email investigation. Necessarily, that application (as required by the Constitution's Fourth Amendment) would have been supported by FBI affidavits.
This new fact is a development of immense potential significance – both for Mrs. Clinton personally and for us as American citizens. It is also unprecedented in American history.
At a minimum, it enables us to pierce the thick cloud of black ink and disinformation released over the weekend by Team Hillary and which is being widely misreported in the current news cycle.
The FBI agents had to make this warrant application because their existing Fourth Amendment search authority was on the basis of Anthony Weiner's (unrelated) suspected misconduct with an underage girl. That investigation was already a grand jury matter. However, that grand jury's authority – which is supervised by a federal judge -- did not authorize the Bureau to pursue information which might be pertinent to the inquiry into Mrs. Clinton's use of a personal email server while she was Secretary of State. Making that application, under standard DOJ protocol, required approval from Main Justice. In this case, the assistant attorney in charge of the Criminal Division, if not the attorney general.
Since the application was made, it's safe to conclude that the Criminal Division at Main Justice authorized the warrant application. Thus, at a minimum, the senior leadership of the Justice Department is not as unanimously condemnatory of FBI director Comey's letter to Congress on Friday as media reports would lead us to believe.
It also explains why Director Comey issued his letter to Congress. The reporting tells us that the FBI's decision to make a warrant application to the supervising judge of the Weiner grand jury triggered Mr. Comey's decision to notify Congress. Having promised Congressional leaders (perhaps unwisely, since he was not required to do so) that, if the Bureau uncovered new evidence relating to Hillarygate which required further inquiry, he would so notify them, he proceeded on Friday to keep his word and do so.
Now he's being condemned by the Democrats and the MSM for not saying why. We'll get to the reason why he's not in a minute. But, first, the granting of the warrant application means several important and new things:
1) A federal judge supervising a grand jury has now made a finding, based on FBI affidavits which present evidence gathered during the preliminary Hillary inquiry (the one which the FBI director stated had been closed back in July), that there's probable cause to believe that a federal crime was committed in connection with Mrs. Clinton's use of a private email server.
We still, however, don't know what crime(s) are suspected to have been committed. Or by whom.
2) The FBI can use this new grant of grand jury authority to investigate Mrs. Clinton's use of a private email server for the first time to issues subpoenaes to obtain testimony from witnesses and compel the production of documents and things. The Bureau and DOJ can, furthermore, use the judge's probable cause finding to support further warrant applications.
This means that, if DOJ authorizes it, a United States attorney now has the ability for the first time to put subpoenaed witnesses before a grand jury. There, without their lawyer in the room, they may be questioned under oath by a federal prosecutor. If the witnesses take the Fifth – and the witness's lawyer is allowed to sit outside the grand jury room and be consulted by the witness before answering a question, they can be immunized and, if they still refuse to testify, a judge can jail them indefinitely until they change their mind.
Huma Abedin, according to prior reporting, received a grant of immunity during the FBI's preliminary investigation. During the first Clinton presidency, Clinton allies chose jail over cooperating with the federal grand jury investigating both Clintons.
We may get to see if a new generation of Clinton allies are willing to do the same.
3) The liberal media's reporting that the Hillarygate email server investigation has not, in fact, been "reopened" is totally false.
Because, not only is the probe reopened, it has been upgraded and expanded. It has been upgraded from a preliminary inquiry to a formal criminal investigation with grand jury power. That also means that, at least at the level of the federal grand jury itself, assistant U.S. attorneys assigned to that grand jury are now for the first time formally involved.
In other words: the Beast is now fully awake.
4) This weekend's development potentially escalates the threat to Mrs. Clinton. While several other procedural steps and processes are necessary, it is a federal grand jury, not the FBI, which issues indictments. The FBI -- using the the grand jury to obtain testimony, conduct searches and compel the production of documents and things - investigates crimes. The U.S. Attorneys, acting though the grand jury, charge and prosecute those persons whom the grand jury finds probable cause to believe have committed those crimes.
5) This weekend's development also means that, for the first time in American history, a candidate for President of the United States is likely now a subject/target of a federal grand jury investigation.
These facts now enable us to analyze and dispel Team Clinton's attempts to lay down a thick fog of misdirection over the scene.
Here it is: Mrs. Clinton's demand that the FBI be "transparent" is pure posturing -- spinning to the max (which Mrs. Clinton, as the most criminally investigated presidential candidate in U.S. history, well knows). Younger readers, please take note: this is not, to put it mildly, Hillary Clinton's first rodeo.
Not for the first time, Mrs. Clinton is being totally disingenuous with the voters (and the media). She is also making FBI director Comey into her personal punching bag. And she's doing it because she knows that the director can't fight back.
In this, Mrs. Clinton is simply repeating a tactic which she and her catspaw Sidney Blumenthal used to good effect during the Whitewater, Travelgate, and Monica Lewinsky investigations in the 1990s. And that tactic worked.
It’s called grand jury secrecy. Now that Hillarygate is, for the first time, a grand jury investigation, Federal Rule of Criminal Procedure 6(e) prohibits the FBI and prosecutors from saying anything about "matters occurring before the grand jury." Their lips are sealed.
Team Hillary's lips, however, are not. They are neither federal prosecutors nor "agents of the grand jury." So, Mrs. Clinton and her spokesmen -- unlike the federal law enforcement officials they've been targeting all weekend -- are free to tell us everything they know.
Let's see if they do. A reporter should ask them.
And, in the meantime, let's not bother to hold our breaths.
If Hillary really wants "transparency," let her release the FBI's warrant application for permission to search Huma Abedin and Mr. Weiner's emails for evidence relating to whether Hillary's use of a private server violated federal law. Huma's lawyers likely have it. If not, they can certainly get it.
Huma, of course, is also free to release the emails too.
That's why Hillary's demand for "transparency" by the FBI is moonshine. She damn well knows the feds can't do it.
She also now knows that the threat level against her has just been upgraded to ORANGE.
William Safire and Christopher Hitchens, thou shouldst be living at this hour!