Did Hillary Clinton become the target of a federal grand jury investigation while running for president? Judicial Watch reported last night that new documents provided in response to a FOIA lawsuit shows that the FBI got subpoenas from a grand jury to seize records of the former Secretary of State’s communications. It didn’t turn up much, but the existence of the grand jury is a new development:
Judicial Watch today released new State Department documents including a declaration from FBI Special Agent E.W. Priestap, the supervisor of the agency’s investigation into Hillary Clinton’s email activities, stating that the former secretary of state was the subject of a grand jury investigation related to her BlackBerry email accounts.
The declaration was produced in response to Judicial Watch’s lawsuit seeking to force Secretary of State Rex Tillerson to take steps to “recover emails of former Secretary of State Hillary Clinton” and other U.S. Department of State employees (Judicial Watch, Inc. v. Rex Tillerson (No. 1:15-cv-00785)). The lawsuit was originally filed against then-Secretary of State John Kerry. The Trump State Department filing includes details of the agency’s continuing refusal to refer the Clinton email issue to the Justice Department, as the law requires.
According to this new information, however, the DoJ did take some action. The FBI got subpoenas from a grand jury to get records from Hillary’s Blackberry accounts at some time in 2016, which JW’s release claims was specifically investigating Hillary. However, those subpoenas turned up nothing new:
In the filing Priestap declares under penalty of perjury that the FBI “obtained Grand Jury subpoenas related to the Blackberry e-mail accounts, which produced no responsive materials, as the requested data was outside the retention time utilized by those providers.”
As recently as last November, critics of the DoJ’s actions regarding the Clinton administration cited a refusal to empanel a grand jury as one of the-Attorney General Loretta Lynch’s major failings (although hardly the only one). If Judicial Watch accurately reports the data in these documents (not included in the press release), then it appears that either the DoJ did take its case to a grand jury, or that they had another reason to have a grand jury look into Hillary’s activities.
Tom Fitton asks in the press release, “Why is this information only being released now?” There may be less to that than one imagines, however. If a grand jury was impaneled and found nothing, there would be no reason to publicize that; the DoJ normally does not confirm or deny investigations unless it results in an indictment. James Comey got forced into discussing the Hillary probe publicly because the hidden e-mail scandal got blown up publicly before the FBI even knew anything about it, and it happened in the course of a political campaign. Also, there’s a possibility that a grand-jury investigation might still be underway, in which case the DoJ wouldn’t discuss it at all — although one might think that would be enough for a judge to withhold that FBI statement about the subpoenas if that were the case.
But did a grand jury exist at all? Politico’s Josh Gerstein recalls Comey’s testimony to Congress last fall, which now looks “cagey” in retrospect:
“Why not impanel an investigative grand jury whereby you have reasonable suspicion that a crime may have been committed, and then you have the ability to get warrants, subpoenas…information, subpoena witnesses before the grand jury under oath?” asked Rep. Tom Marino (R-Penn.), a former U.S. attorney.
Comey responded by explaining why a subpoena wouldn’t have been an efficient approach, although he remained cagey about whether a grand jury had been used at all in the Clinton probe.
“It’s a reasonable question,” the FBI director said. “I don’t want to talk about grand jury in connection with this case….We know we’re never supposed to talk about grand jury publicly.” …
“Why did you not decide to go to an investigative grand jury? It would have been cleaner. It would have been much simpler,” Marino replied.
“I need to steer clear of talking about grand jury use in a particular matter,” Comey said again. “In general, in my experience, you can often do things faster with informal agreements, especially when you’re interacting with lawyers.”
What does this tell us about the Hillary probe? The DoJ and the FBI may have taken it more seriously than first thought. If the grand jury returned no indictments, that could either mean that federal prosecutors wound up with nothing, or some might argue that they made sure they wound up with nothing. If the latter was the case, though, Lynch and Comey would likely have cited that as a better reason not to proceed to prosecution than the reasons Comey ended up giving last July — assuming that any potential grand jury probe has ended. Now that the cat’s out of the bag, perhaps the DoJ will clarify this matter a little more, but if it’s still active, they almost certainly won’t.