More Hillary Chronicles

By Judge Andrew P. Napolitano

November 16, 2017 7 min read

The Department of Justice will soon commence an investigation to determine whether there should be an investigation (you read that nonsense correctly) of a scandal involving the Clinton Foundation and a company called Uranium One. It appears that FBI decisions made during the time that Hillary Clinton was being investigated for espionage will also be investigated to see whether there should be an investigation to determine whether she was properly investigated. (Again, you read that nonsense correctly.)

Only the government can relate nonsense with a straight face. Here is the back story.

When President Donald Trump fired FBI Director Jim Comey last spring, the attorney general's stated purpose for recommending the firing was Comey's dropping the ball in the investigation of Clinton's email when she was secretary of state. After a year of investigating her use of her own computer servers to transmit and store classified materials instead of using a government server to do so — and notwithstanding a mountain of evidence of her grossly negligent exposure of secret and top-secret materials, which constitutes the crime of espionage — the FBI director decided that because no reasonable prosecutor would take the case, it should be dropped. Weeks later, the DOJ ratified Comey's decision.

At the same time that Clinton was failing to safeguard state secrets, she was granting official State Department favors to donors to her family's charitable foundation. There are dozens of examples of this so-called "pay to play," the most egregious of which is the Uranium One case. This involved a Canadian businessman and friend of former President Bill Clinton's, Frank Giustra, who bundled donations from various sources that totaled $148 million, all of which Giustra gave to the Clinton Foundation.

At the same time that Giustra made this extraordinary donation, he was representing a client that needed federal permission to purchase a 51 percent stake in Uranium One, which then controlled about 20 percent of America's licensed uranium mining capacity. Secretary Clinton freely gave Giustra's client the State Department's approval, and it soon acquired the remaining approvals to make the purchase. Giustra's client is a Russian corporation controlled by the Kremlin.

When the FBI got wind of the Giustra donation and Secretary Clinton's approval and the Kremlin involvement, it commenced an investigation of whether Clinton had been bribed. At some point during former President Barack Obama's second term, that investigation was terminated. We do not know whether the investigating FBI agents learned that the Clinton Foundation was not even registered as a charity by the states in which it was doing business or authorized by them to receive tax-free donations.

At the same time that the FBI was looking into Uranium One, American and British intelligence agents were surveilling Donald Trump. The belated stated purpose of that surveillance was to ascertain whether the future president or his colleagues were engaged in any unlawful activity by accepting campaign favors from foreign nationals or were improperly assisting foreign intelligence agents to interfere with the presidential election.

One of the foreign nationals whose communications were captured during that surveillance was Sergey Kislyak, then the Russian ambassador to the United States. He spoke with Michael Flynn, then the national security adviser to President-elect Trump. Mysteriously, portions of a transcript of those intercepted communications were published in The Washington Post.

Another foreign national who caught the FBI's attention is a former British intelligence agent named Christopher Steele. Steele had compiled a dossier about, among other things, alleged inappropriate behavior by Trump in a Moscow hotel room years earlier. After offering Steele $50,000 to corroborate his dossier, the FBI backed down.

After being confronted by irate Republican members of the House and Senate judiciary committees, who demanded to know why the investigations of these matters had been terminated, Attorney General Jeff Sessions revealed that he has asked career DOJ lawyers to commence an investigation of all of the above to determine whether an independent counsel should be appointed to investigate all of the above.

This is the investigation to determine whether there should be an investigation. This is also the DOJ's reluctance to do its job.

Can the government investigate itself? The short answer is yes, and it has done so in the past. But it hardly needs an investigation to determine whether there should be an investigation. The job of the DOJ is to investigate probable violations of federal law. Sessions should not shy away from this and should not push it off to another independent counsel.

We have one independent counsel already because his target — let's be candid — is the president of the United States. That is a potato too hot for the DOJ. But Hillary and Bill Clinton, the FBI's tampering with the political process, and the use of intelligence-captured communications for political purposes are not. It is profoundly the duty of the DOJ — using its investigatory arm, the FBI — to investigate all this.

Whatever Comey's motive for not prosecuting Hillary Clinton and the DOJ's ratification of it, the current DOJ is not bound by these erroneous decisions. The evidence in the public domain of Clinton's espionage and bribery is more than enough to be presented to a grand jury. The same cannot be said about FBI involvements with the Steele dossier or the use of intelligence data for political purposes, because we don't yet know who did it, so we need aggressive investigation.

But none of this presents the type of conflict that exists when the president is a target, and none of this requires an independent counsel. All of this simply requires the DOJ to get to work.

That is, unless the lawyers in the leadership of this DOJ are fearful of investigating their predecessors for fear that their successors might investigate them. Whoever harbors those fears has no place in government.

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Judge Andrew P. Napolitano
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