- - Monday, October 31, 2016

ANALYSIS/OPINION:

Rarely has the FBI been so embroiled in public controversy. And never has so much misinformation about its workings been so prevalent.

At a recent luncheon meeting of the Washington chapter of the Society of Former FBI Agents, Michael Steinbach, the FBI’s executive assistant director in charge of national security investigations, tried to straighten some of it out.

Mr. Steinbach told the 80 former FBI agents in attendance that while FBI Director James Comey made the final decision on the case, Mr. Steinbach himself supervised the FBI’s investigation of Hillary Clinton’s handling of her emails, according to John L. Martin, a former FBI agent who attended the lunch meeting.

About 25 FBI personnel worked on the case, Mr. Steinbach said. Contrary to what seems to be a given in some media circles, no rebellion of FBI agents has taken place because of Mr. Comey’s decision not to prosecute the presidential candidate. In fact, according to Mr. Martin, Mr. Steinbach said all of those who worked on the case said they agreed with Mr. Comey’s decision.

To be sure, many former agents disagree with the decision. But having written three books about the FBI, including one that led to the dismissal of William Sessions as FBI director over his abuses, I can tell you that all former agents never agree on anything.

Mr. Steinbach told the former agents at the meeting that he was disappointed that so many former agents have questioned the integrity of the FBI’s investigation without firsthand knowledge either of the facts or the thinking behind the decision not to prosecute Mrs. Clinton.

Aside from the FBI agents and prosecutors who worked on the case, no one is in a better position to explain that decision than John Martin. After leaving the FBI, Mr. Martin became a Justice Department prosecutor. For 25 years he was in charge of prosecuting all the espionage laws, including Section 793(f) of the federal criminal code, the statute that is pertinent in the Clinton investigation. Among the 76 spies Mr. Martin prosecuted were John A. Walker Jr., Jonathan Pollard and Aldrich Ames.

During those years, Mr. Martin tells me, he never used Section 793(f) alone because, while that law makes it a felony to handle material relating to the national defense with “gross negligence,” it is unlikely a jury would convict a defendant on that charge alone without a showing of criminal intent.

Thus, in the case of former CIA Director David Petraeus, besides charging him with a violation of Section 793(f), the Justice Department charged him with lying to the FBI, an indication of criminal intent. He agreed to a plea disposition.

Beyond the conspiracy theories about Mr. Comey’s decision not to prosecute, critics have marshaled a burgeoning number of non sequiturs: The FBI should have recorded its agents’ interview of Mrs. Clinton. She should have been placed under oath. She should have been given a polygraph test. Mr. Comey should have recommended impaneling a grand jury so that subpoenas could have been issued for pertinent evidence. The fact that he gave limited immunity from prosecution to key Clinton aides means he was giving her a break. And Mr. Comey ignored the fact that Mrs. Clinton has lied repeatedly about her use of a private email server for sensitive government business to try to cover up her egregious conduct.

But except in unusual circumstances, the FBI does not record interviews unless a subject is in custody after an arrest. Lying to the FBI is a crime, so there is no need to place a subject under oath. The fact that Mrs. Clinton has lied repeatedly to the public is irrelevant in a criminal investigation. Only if she lied to the FBI during her interview could she be prosecuted. And polygraphs are voluntary. Mrs. Clinton, whose FBI interview was voluntary, never would have consented to taking a polygraph test.

By eliciting Mrs. Clinton’s cooperation, Mr. Comey avoided the delays that her high-powered lawyers would have imposed if a grand jury had issued subpoenas. The fact that Mr. Comey gave limited immunity to aides demonstrates how determined he was to gather evidence to indict his target.

Finally, bad as it may look, whether FBI official Andrew McCabe became FBI deputy director months after his wife received Democrats’ campaign contributions and ended her unsuccessful run for the Virginia state Senate is irrelevant. So is the fact that John Podesta, Mrs. Clinton’s campaign chairman, had dinner with pals who included his longtime friend, Peter Kadzik, who is a Justice Department legislative affairs official.

Though everyone knows this isn’t going to happen, now both Republicans and Democrats are calling for Mr. Comey to reveal exactly what the FBI found on a laptop shared by Mrs. Clinton’s top aide Huma Abedin and her husband Anthony Weiner that led to his decision to restart the Clinton investigation. Obviously, if the FBI knew what is relevant in the newly discovered emails, there would have been no need to reopen the investigation. By its nature, that investigation will take time.

Once the new evidence was uncovered by his agents, Mr. Comey found himself in a difficult position. If he had kept quiet about the reopening of the investigation until after the presidential election, he would have been accused by Republicans of covering up for Mrs. Clinton. By disclosing the new information before the election, he opened himself to being accused by Democrats of favoring Donald Trump.

As he did in laying out the evidence against Mrs. Clinton at a press conference and calling her actions “extremely careless,” Mr. Comey chose the right course by being honest with the American people and updating them on the status of the FBI investigation so they could judge her conduct for themselves.

Ronald Kessler, a former Washington Post investigative reporter, is the author of “The Secrets of the FBI” and “The First Family Detail: Secret Service Agents Reveal the Hidden Lives of the Presidents.”

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