What can the FBI do about Hillary Clinton without a grand jury?

It almost seems like old news at this point, but the Hillary Clinton email server story arc continues to dump one damaging headline after another on the head of the presumptive Democrat nominee. We saw the recent revelation that some of the material stashed away in that bathroom closet contained data relating to human intelligence at the highest level. We then heard former Attorney General Michael Mukasey say it’s time to charge her with mishandling classified documents. And yet nothing seems to happen beyond scattered rumors from mostly nameless sources saying that the FBI is busily digging away. Why is that?

Andrew Mccarthy points out this weekend that there’s something important missing from the process at this point: a grand jury.

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.

No Justice Department, no grand jury. No grand jury, no case — period. As a technical matter, no matter how extensively the FBI pokes around on its own, no one can be a subject of a real investigation — i.e., one that can lead to criminal charges — unless and until there is a grand jury. That does not happen until the Justice Department hops on board.

Now, there’s nothing that Andrew is talking about at the 10,000 foot level which we haven’t noted here before. All the evidence in the world isn’t going to do any good if you can’t find someone to make an arrest and bring a case to trial. But he goes on from there to express a level of hope and confidence which I really haven’t been feeling thus far. The author’s main point is that the White House is currently hedging their bets by playing both sides of the fence, so to speak. Barack Obama, through the offices of his Attorney General, is allowing the FBI to move forward with the investigation, but Justice isn’t taking part in the process so there is no grand jury. In this way the President hopes to avoid the appearance of shielding Hillary from the long arm of the law while simultaneously protecting himself from the wolves in his own party who would be howling for blood if he brought Loretta Lynch in to make Clinton an “official target” of an investigation while she’s running for president.

All valid in my opinion, but then Andrew goes on to say that the President wouldn’t dare stand athwart the call of justice, and he’s placing his faith in the credentials of FBI Director James Comey.

Jim is tough, he is smart, and if there is a case to be made here, he will make it. And if he makes it, it will be bulletproof.

Of course, making the case would not mean the FBI could force attorney general Loretta Lynch — and the president to whom she answers — to pursue the case. The FBI cannot convene a grand jury and present an indictment. But you’d best believe the FBI can make the Obama administration look very bad if it shrinks from doing so. Then it will be a matter of how far Barack Obama is willing to stick his neck out for Hillary Clinton.

I’m betting: not that far.

Mccarthy clearly has a lot more faith in the system than I do. And to be clear, I’m not knocking James Comey here. I’ll take him at his word that he’s a conscientious servant of the law and that he’ll do his best to see any guilty parties brought before a judge and jury. But as Mccarthy freely admits, all Comey can really do is make the Obama administration look very bad if they fail to unleash the Justice Department on the case. But when has that stopped them before? As we’ve mentioned here more times than I can count, an IG brought forward a case against Huma Abedin on embezzlement charges and Attorney General simply passed on it. They didn’t care how bad anything looked. They simply weren’t going to go after anyone associated with Clinton or the White House inner circle.

Are we to believe that now Loretta Lynch would impanel a grand jury to go after Secretary Clinton over the classified information on her server? Andrew seems to think that failing to do so would require Barack Obama sticking his neck out on her behalf and that he would somehow balk at the idea. I’m not seeing it, though I’d love to be wrong.

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