By Noel J. Francisco and James M. Burnham,
Tim Kaine repeatedly defended Hillary Clinton’s use of a private email server during Tuesday night’s vice-presidential debate. “The FBI did an investigation,” he said at one point, “and they concluded that there was no reasonable prosecutor who would take it further.” But such a statement is credible only if it follows a real criminal investigation—that is, the sort of investigation that the FBI and the Justice Department conduct when they actually care about a case and want convictions.
We know all too well what that kind of investigation looks like, as two of the lawyers who defended a recent target: former Virginia Gov. Bob McDonnell. That story had a happy ending for the governor and his wife. The Supreme Court unanimously ruled in their favor this summer and all charges were dropped in September. But their victory certainly wasn’t due to lack of investigatory zeal on the part of the FBI and Justice Department.
Below are only a few of the heavy-handed tactics federal investigators used to build their case against the McDonnells. See how they compare to how Mrs. Clinton was treated.
Conduct ambush interviews. The first contact between law enforcement and the McDonnells was an ambush interview of the governor’s wife. The agents lied to her about the topic of the meeting, forbade Gov. McDonnell’s staff from attending, and then grilled her on their suspicions about potential public corruption. Statements from that interview later took center stage in the trial of her and her husband.
In Mrs. Clinton’s case, no ambush interviews were conducted, and witnesses were generously accommodated. The FBI and Justice Department even allowed a fact witness and potential target— Cheryl Mills, formerly the State Department’s chief of staff—to simultaneously represent Mrs. Clinton as her counsel.
Immunize only witnesses who can help deliver convictions. One person in Gov. McDonnell’s case got immunity: Jonnie Williams, the prosecution’s star witness. For his testimony, Mr. Williams earned a wealth of blanket immunity—not simply from potential bribery prosecution but also from unrelated crimes he might have committed (including securities and tax fraud). Reluctant witnesses—Gov. McDonnell’s children and friends—were called before a grand jury and forced to testify.
Contrast that with Mrs. Clinton’s case. Much of her staff was immunized in exchange for simply meeting with investigators. None of them appear to have been pressed for information, or given any incentive whatsoever to spill on the boss.
Investigate and charge all potential crimes. Prosecutors in Gov. McDonnell’s case collected more than five million pages of documents and filed charges for every potential crime they could. In addition to the corruption charges, the governor and his wife were accused of lying to banks and obstructing justice. The jury acquitted the McDonnells of the former, and the trial judge ruled there was insufficient evidence of the latter. But the prosecutors pursued these charges vigorously, despite their lack of merit.
For Mrs. Clinton, there appears to have been no investigation into crimes beyond the mishandling of classified information. In particular, the FBI seems to have readily accepted Ms. Mills’s claim that she did not learn about Mrs. Clinton’s private server until after both of them had left the government. This is implausible on its face, since the two were in regular email contact while working at the State Department. It is also contradicted by a witness who administered the server, as well as by Ms. Mills’s own emails. These sorts of inconsistencies were enough to get Mrs. McDonnell, Scooter Libby—former Vice President Dick Cheney’s chief of staff—and others indicted for allegedly covering up crimes. In Mrs. Clinton’s case, they weren’t even investigated.
Construe “corruption” broadly. Investigators of Gov. McDonnell took the most expansive possible reading of the law. They argued to the Supreme Court this spring that it was a felony for the governor to arrange meetings between a benefactor and other government officials, even without trying to sway the ultimate decision.
Yet the FBI appears to have done no investigation into how Secretary Clinton’s conduct while in office was affected by massive donations to the Clinton Foundation or large payments for speeches given by her husband, former President Bill Clinton. Journalists have unearthed extensive evidence of special treatment: The Associated Press reported that during the first half of her tenure, Mrs. Clinton had meetings or phone calls scheduled with 154 private interests; 85 were Clinton Foundation donors, who in total had pledged or given as much as $156 million.
Claim that concealment proves consciousness of guilt. In Gov. McDonnell’s case, there was no evidence—none—that he ever suspected his conduct could be criminal. Prosecutors tried to show criminal intent by arguing that he “hid” gifts by declining to list them on annual disclosure forms. But Gov. McDonnell complied with Virginia’s disclosure requirements in virtually all respects. The law simply did not require much information to be disclosed. Further, many of his family and staff knew about the gifts. Still, prosecutors claimed that failure to tell the public sufficed to prove a guilty mind.
FBI Director James Comey said that in Mrs. Clinton’s case there was no evidence of criminal intent. Yet she set up a private email server in her basement and permanently deleted thousands of the emails it contained. A plausible motive would be shielding her activities from public scrutiny. The Comey standard—that direct evidence of knowing criminality is needed to prosecute—is certainly not the one that his agency and the Justice Department applied to Gov. McDonnell for more than three years.
To be clear, we aren’t endorsing these heavy-handed tactics, many of which are befitting Inspector Javert of “Les Misérables.” But these are the sorts of things investigators do when they are serious about bringing criminal charges. In deciding whether the investigation into Mrs. Clinton was a real one—as opposed to a grand, expensive spectacle of law-enforcement theater—Gov. McDonnell’s treatment is instructive.
Messrs. Francisco and Burnham practice law at Jones Day in Washington, D.C.