The FBI’s Act of Courage

Robert  Charles
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Posted: Oct 30, 2016 10:08 PM
The FBI’s Act of Courage

Where does the yellow brick road lead? Let’s review. Disgraced former Congressman Anthony Weiner, is apparently under FBI investigation for sexting a minor. He is married to – but separated from – Huma Abedin, who was simultaneously Deputy Chief of Staff to former Secretary of State Hillary Clinton and a paid consultant to the Clinton Foundation, is an American raised in Saudi Arabia, now vice chair of Clinton’s presidential campaign.

Weiner apparently gave his computer to the FBI, presumably either to support a plea or under legal compulsion. The computer reportedly has “tens of thousands of emails” not formerly seen by the FBI. Huma apparently used this same computer while at State, and emails include some to or from Clinton. Why should this be any problem? Why would this cause the FBI to reopen the investigation of Clinton? We can only interpolate, but that may be worth the time.

First, both Huma and Clinton had formerly told the FBI they had handed over all of their work-related emails. If this proves untrue, a predicate criminal act may be under investigation. Second, the computer may contain classified emails to or from the Secretary, which would open up another possible predicate act for which a grand jury could be empaneled.

Or perhaps there is something else afoot. Recall that Huma was, rather oddly, duel hatted. She was also working for the Clinton Foundation. Perhaps that computer, unlike her official State computer, contains the missing nexus, proof of quid pro quo or “pay to play,” the averred scheme by which Secretary Clinton is said to have scheduled meetings, favored award of contracts, and rendered official decisions in return for countries and contractors making “contributions” to the personal Clinton Foundation. This too might warrant a grand jury empaneling.

But for whom would that grand jury be empaneled? If Huma’s level of cooperation was minimal, such as a Fifth Amendment claim, then it might be for her. Notably, any prior grant of immunity would be limited to information known at the time, not to information later discovered. In that case, Weiner might prove an important witness and might testify to avoid indictment or reduce charges against himself. In that event, the writing would likely be on the wall, since the emails and Weiner’s testimony might be damning to Huma.

On the other hand, what if Huma followed her estranged husband’s cooperative example, and decided that she was up against it, that testifying against others was a better choice, to reduce her own likelihood of indictment or win leniency? Against whom could she meaningfully testify, other than her husband? Possibly another staffer, but that would buy her little, especially if emails already pointing to the staffer. The object of her testimony would have to be a Clinton, herself – and possibly him – since she was the bridge between Hillary’s official conduct and the Foundation, including Bill. If that is accurate, then any grand jury empaneled to hear testimony would likely pivot to the Clintons, more likely Mrs. than Mr., but potentially both, and their Foundation.

This is not a happy place to be, especially not days before an election. While “October Surprises” are common, and some have been serious (such as a last minute indictment of a former Bush 41 cabinet member), this one would take the cake. Add other elements. There is a reported sense among law enforcement leaders and some FBI personnel, that the FBI Director was off base in his July announcement, first saying Mrs. Clinton was reckless in handling classified material, then confirming no indictment would be sought. Some felt that evidence pointed to a grand jury. Others felt that he had no authority to make an announcement for the Attorney General, whose job it was to make such determinations.

Others went further, arguing that he was asked to shield or was voluntarily shielding an Attorney General who was overtly conflicted, having held an ex parte meeting with Bill Clinton during the investigation of his wife and Foundation. Whatever his motives, the law enforcement community and former prosecutors were dismayed, many angry that he was impairing the longstanding reputation of FBI impartiality. The primary observation was that “no one should be above the law,” that “rule of law” and the “reputation of the FBI for impartiality” were both being unnecessarily placed at risk.

In this arch-political year, the FBI Director’s July decision to close the case against Hillary Clinton won high praise from Democrats, disparagement from Republicans. Ironically, the FBI’s Director’s October decision to reopen the case against her produced the reverse. Frankly, those reactions are secondary. Why? Because the underlying issue is serious: The FBI has apparently discovered evidence of such a magnitude, that despite serving under a Democratic President and Democrat Attorney General, despite formerly side-stepping the issue, it must reopen the investigation into the Democratic presidential candidate, days before an election. Whatever the basis, it must be serious.

My own guess is that the FBI Director – having sat behind him in the National Security Council years ago – hates the position he is now in. My guess is that he did not want to do this, did not plan on doing this, did not have sufficient evidence before last week, and is now doing what he feels he must – out of respect for “rule of law,” respect for the American principle, a conviction that “no one is above the law,” and because he feels he has no choice.

History will be the judge. Such a decision will cause him no end of grief, as he must know. He will be questioned and his judgment held up to close retrospective examination under hot lights. He will no doubt be vilified, demonized, attacked in the press and called what he is not, political. To me, all politics aside – which is like unstirring ink from water – he has committed an act … of profound courage.

In political Washington, pressure on him not to act, to go with inertia, to ignore, minimize, and put off any action, had to be enormous. But in my limited experience watching him, this FBI Director does care a great deal about rule of law, about the wider law enforcement community, about the reputation of the FBI, and about that sacred trust vested in him by two presidents, multiple congresses and the American People. On the best of days, he has a hard job. Today, it may be the hardest in public life. But he also has integrity, and has always had heart.

Wherever the yellow brick road leads, my assessment is that the FBI Director, Jim Comey, is a good man in a tough place, trying hard to serve faithfully, to uphold a sacred oath under enormous pressure, at a terrible time in our truly Great Republic’s history. He is running for nothing, but he has my vote.

Robert Charles was Assistant Secretary of State under Colin Powell, served in the Reagan and Bush 41 White Houses, is a former US Court of Appeals Clerk, 9th Circuit, and regular writer on law and national security.