On Tuesday, the Wall Street Journal’s Devlin Barrett published another eye-opening report about the FBI’s Clinton Foundation investigation. It elaborates on the pitched battle between FBI agents who believe they are building a strong case and Justice Department prosecutors who have thrown cold water on it, erecting roadblocks that have made the agents’ work much more difficult.
For reasons worth pausing over, the locus of that battle is the United States Attorney’s Office for the Eastern District of New York, which is headquartered in Brooklyn.As I explained earlier this week, that is the office that Attorney General Loretta Lynch ran for several years after being appointed by President Obama during his first term — up until Obama appointed her U.S. attorney general. That was Ms. Lynch’s second tenure running the EDNY. She was launched into national prominence when President Bill Clinton made her the EDNY’s U.S. attorney in 1999. So the Clinton Foundation investigation is being overseen by the prosecutors’ office to which Lynch is closest — filled with prosecutors she hired, trained, and supervised.
Is it any wonder, then, that the EDNY seems to have broadened its territorial reach?
There are 93 federal districts in the United States. Some states are small enough to be single districts; others are big enough to be carved into two districts or more. The federal law of venue (i.e., the district in which a criminal case may be prosecuted) is very elastic. In theory, a case may be brought in any district where some of the criminal conduct, however minimal, took place. In practice, though, the FBI customarily runs its investigation, and the Justice Department files any indictment, in the district where most of the criminal activity occurred.
Anchoring an investigation in the district that is the epicenter of the conspiracy, or is at least the locus of significant criminal conduct in the case, is obviously practical. It also serves the Sixth Amendment mandate that criminal cases be tried in the “district wherein the crime shall have been committed.”
Let’s think about the investigation of Hillary Clinton and her confederates. The Bill, Hillary, and Chelsea Clinton Foundation has its main office in midtown Manhattan, while Bill Clinton has long kept an office in the Harlem neighborhood of northern Manhattan. That borough is in the Southern District of New York, not the Eastern District. In addition to Manhattan, the SDNY includes the Bronx and six counties north of the city — three on each side of the Hudson River. Among these is Westchester, where the Clintons’ Chappaqua manse — the primary home of Hillary’s infamous home-brew server — is located. The SDNY is the jurisdiction of my former U.S. attorney’s office, and it is also the locus of the FBI’s New York headquarters.
The State Department is, of course, in Washington, as is the Clintons’ second residence. The District of Columbia is thus another place where a great deal of the activity under investigation took place. Little Rock, home of the Clinton presidential library, is in the Eastern District of Arkansas. Platte River Networks, the information-technology firm that serviced the Clintons’ server for a time, and — at the direction of Clinton aides — deleted and attempted to destroy tens of thousands of e-mails, is in Denver, the District of Colorado.
It is not my intention to bore you with a geography lesson. It is just that when I think about points of interest in the FBI’s investigations of classified-information offenses and pay-to-play corruption — the Clinton Foundation, the e-mails, Foggy Bottom, Barack Obama’s BlackBerry, the loft bathroom where the server was stashed, etc. — if there is one place on the planet that does not exactly leap to the fore, it is the Eastern District of New York. Besides Brooklyn, the EDNY’s jurisdiction includes Queens, Staten Island, and Long Island.
Don’t misunderstand: I am not suggesting that there is anything illegal about the Justice Department’s anchoring of the Clinton caper in the EDNY. For example, the case features lots of Clinton-clan luxury global travel underwritten by “charitable” donations. One must thus assume that John F. Kennedy Airport in Queens, one of the world’s busiest international airports, is a vector in the investigation.
Still, the EDNY is clearly not the center of gravity when we consider the conduct the FBI is examining. Yet it has become the hub of the investigation. That can only be because the Obama Justice Department steered it there.
By the way, I should note that federal prosecutors tend to be an ambitious and aggressive bunch. And there is nothing they crave more than high-profile political-corruption cases — just ask Rudy Giuliani, the legendary SDNY U.S. attorney (who hired both current FBI director Jim Comey and yours truly). Ask Chris Christie, formerly the U.S. attorney for the District of New Jersey, who similarly launched a highly successful political career by prosecuting headline-grabbing political-corruption cases. Ask Preet Bharara, the current SDNY U.S. attorney who is poised to do the same thing, having made his bones as an anti-corruption crusader.
Indeed, you could probably even ask the Obama Justice Department in Washington and its U.S. attorney’s office in the Eastern District of Virginia. They were so zealous in the investigation of that state’s Republican governor, Bob McDonnell, that they managed to win a conviction that the Supreme Court later vacated. And just yesterday, the Justice Department’s U.S. attorney in New Jersey convicted Governor Christie’s top staffers by inflating a traffic jam into a federal felony.
Yet, in the Hillary Clinton case, out of the 93 districts in the country, the Justice Department managed to find one that would not issue grand-jury subpoenas — something prosecutors generally do at the drop of a hat in even minor investigations. The investigation is being overseen by an office in which the prosecutors have been remarkably accommodating to the demands of defense lawyers, while appearing outright hostile to the FBI — reportedly denying the Clinton Foundation investigative team access to patently relevant e-mail evidence amassed by the classified-information investigators.
According to Mr. Barrett’s report, the “center of the tension” between the FBI and prosecutors was Robert Capers, the EDNY U.S. attorney chosen by President Obama to replace Ms. Lynch. Meanwhile, at Main Justice in Washington, the FBI was shot down by the Criminal Division chief, Assistant Attorney General Leslie Caldwell — who spent the first dozen years of her highly accomplished and impressively aggressive career as a prosecutor in the EDNY.
At one point, as tensions escalated between FBI investigators and the prosecutorial tandem of Main Justice and the EDNY, Barrett reports that a “senior Justice Department official” pointedly rebuked the bureau’s deputy director, Andrew McCabe, for refusing to stand down. Evidently, the unidentified official was shamed into backing off when McCabe shot back, “Are you telling me that I need to shut down a validly predicated investigation?”
“Of course not” was the DOJ official’s pregnant reply — which, to my ear, after 20 years of interacting with top DOJ and FBI officials, sounds an awful lot like “Of course.”
Here’s a parting thought, an intriguing one that those of us who’ve been so critical of FBI director James Comey would do well to mull over. The FBI didn’t shut down its validly predicated Clinton Foundation investigation.
We now know that the bureau plugged along despite fierce headwinds from Washington and Brooklyn, where Loretta Lynch’s favorite prosecutors were vocal naysayers. There can be only one explanation for the agents’ defiant perseverance in the teeth of opposition from the attorney general of the United States, the rest of the top brass at Main Justice, and the United States attorney for the EDNY who was directly in charge of overseeing the investigative efforts.
The agents had to know that the director of the FBI had their back.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.
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