The air waves, the Internet and the blogesphere are swamped with commentary and speculation about the seemingly contradictory public statement made by FBI Director James Comey concerning the investigation of Hillary Clinton’s emails.
I will try my hand at offering an explanation. Let’s start with the Constitution. The Fifth Amendment of the Bill of Rights specifies that:
NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY
A grand jury is an assemblage of between sixteen and twenty-three citizens called to determine whether a crime has been committed and who probably did it. It is not an adversary proceeding. There is no defendant, nor defense counsel. The prosecutor is in charge. There are no rules of evidence. Hearsay and rumor can be considered. The Grand Jury can subpoena witnesses and force them to testify. It can punish for contempt or perjury.
A grand Jury meets in secret. Jurors, witnesses and counsel are sworn not to disclose what they see and hear in the sessions. If the Grand Jury does not find that a crime has been committed, they return “no bill” and that is the end of it.
If the Grand Jury finds that a crime has been committed and that there is probable cause to believe that a certain person committed it, they return a bill of indictment, which authorizes the prosecutor to proceed with a criminal case against that person.
An indictment by a Grand Jury requires twelve votes. If the jury consists of sixteen, that represents a 75% majority. If it is a jury of 23, the 12 votes would be a bare majority.
The Federal Bureau of Investigation is an agency within the office of the Attorney General of the United States. Its function is to investigate possible criminal activity, identify those responsible, and seek their prosecution and conviction. It functions essentially as a police department for the federal government.
FBI investigations are not normally revealed to the public unless there is some perceived need for public cooperation. This is for the same reason that Grand Jury deliberations are carried on behind closed doors. If nothing criminal is found, the damage to reputations and careers based on rumor or insinuation is unconscionable.
In the case of the Clinton email investigation, however, the matter first came to the FBI at the request of the Inspector General of the Intelligence Community, who in turn was prodded by a Congressional committee investigating the Benghazi attack.
Because it came to his desk in a politically charged up atmosphere, Director Comey determined that extraordinary transparency was needed. This was his reason for calling a press conference instead of simply writing a letter to the Justice Department.
James Comey is a very successful lawyer. In a career of over 30 years as at the Bar, he has held a number of positions in government and business, steadily moving up the ladder of importance and responsibility, and has built a solid reputation as an independent, principled, responsible professional.
Director Comey understands that in government as in business, the name of the game is to justify the decision to hire you. It isn’t just a matter of pleasing your superiors – although there is surely much of that – it is also a matter of doing what is objectively good for the organization.
Comey could have sent the Clinton email file to the Attorney General without comment, and left Loretta Lynch to explain why she didn’t call for a Grand Jury. He didn’t. He went out on a limb to include a gratuitous bit of advice to the effect that “no reasonable prosecutor” would pursue the matter.
Candidly, I think it’s a tempest in a tea pot. No Grand Jury of 16 or 23 citizens drawn from Washington D.C. or New York is likely to return an indictment of the Democratic Party’s candidate for President just three months before the election.
So now, Hillary’s case has been referred to the Court of Public Opinion. Hear Ye, Hear Ye. The People’s Court is now in session.