Contrary to widespread reports, federal prosecutors issued grand jury subpoenas in connection with an investigation into Hillary Clinton’s email server, an FBI official indicated in a court filing this week.
After FBI Director James Comey announced last July that there were no plans to prosecute Hillary Clinton or her top aides in connection with the exchange of sensitive national security information on her private email system, many Republicans argued that the FBI pulled its punches in the probe, particularly by failing to convene a grand jury that could subpoena records and evidence related to the case.
However, a top FBI official revealed in a civil lawsuit this week that investigators used grand jury subpoenas in an unsuccessful attempt to obtain archived copies of some of Clinton’s old email messages.
“The FBI…obtained grand jury subpoenas related to the Blackberry e-mail accounts, which produced no responsive materials, as the requested data was outside the retention time utilized by those providers,” FBI Assistant Director for the Counterintelligence Division E.W. Priestap wrote in a declaration filed Monday in federal court in Washington.
Priestap did not provide details about the subpoenas, although he suggested they were served on AT&T Wireless and a firm it acquired, Cingular.
The new filing doesn’t make clear how extensive the use of the grand jury was in connection with the Clinton probe. It’s possible federal prosecutors issued the subpoena without any actual involvement by grand jurors.
Use of grand jury subpoenas — something lawyers call “mandatory process” — could have been a political cudgel for Republicans if known earlier, since that tool would indicate the investigation was criminal in nature and not simply an intelligence-focused security review, as Clinton aides often claimed.
While most investigative work in the probe was done via voluntary interviews and provision of evidence, prosecutors and the FBI eventually turned to mandatory process again when the investigation was reactivated weeks before the presidential election. A search warrant was obtained in late October to review copies of additional email messages discovered on a laptop seized from former Rep. Anthony Weiner (D-N.Y.), the estranged husband of top Clinton aide Huma Abedin. The warrant required the FBI to indicate probable cause that the laptop contained evidence of a crime or some sort of contraband.
Priestap’s declaration was filed in connection with lawsuits conservative watchdog groups Judicial Watch and Cause of Action Institute filed against former Secretary of State John Kerry and Archivist of the U.S. David Ferriero in an effort to force the government to take additional steps to try to recover Clinton’s work-related messages. Tens of thousands of those messages have been retrieved and have already been made public by the State Department.
The government’s new court filing, including Priestap’s statement, sought to establish that there is nothing practical officials can do at this point to try to recover more of Clinton’s messages.
However, Judicial Watch president Tom Fitton said he’s puzzled that the FBI revealed the grand jury action at this juncture.
“The FBI convened a grand jury to investigate Hillary Clinton in 2016. Why is this information being released only now?” said Fitton, whose group publicized the filing to reporters on Thursday. “And it is disturbing that the State Department, Justice Department and FBI are still trying to protect Hillary Clinton. President Trump needs to clean house at all these agencies.”
Spokespeople for the FBI and the Justice Department declined to comment.
Comey was pressed on why he had not used a grand jury to obtain access to laptops lawyers used to sift Clinton’s emails during a House hearing in September. Instead, the FBI relied on a voluntary agreement with Clinton’s attorneys, including a limited form of immunity barring use of information on those computers to prove any charges against the lawyers.
“Why not impanel an investigative grand jury whereby you have reasonable suspicion that a crime may have been committed, and then you have the ability to get warrants, subpoenas…information, subpoena witnesses before the grand jury under oath?” asked Rep. Tom Marino (R-Penn.), a former U.S. attorney.
Comey responded by explaining why a subpoena wouldn’t have been an efficient approach, although he remained cagey about whether a grand jury had been used at all in the Clinton probe.
“It’s a reasonable question,” the FBI director said. “I don’t want to talk about grand jury in connection with this case….We know we’re never supposed to talk about grand jury publicly.”
“Anytime you’re talking about the prospect of subpoenaing a computer from a lawyer, it involves the lawyer’s practice of law, you know you’re getting into a big megillah,” Comey added.
“Why did you not decide to go to an investigative grand jury? It would have been cleaner. It would have been much simpler,” Marino replied.
“I need to steer clear of talking about grand jury use in a particular matter,” Comey said again. “In general, in my experience, you can often do things faster with informal agreements, especially when you’re interacting with lawyers.”
Early last year, U.S. District Court Judge James Boasberg dismissed the lawsuits seeking additional recovery of the Clinton emails. However, in December, a federal appeals court revived the cases, indicating the government needed to make a more robust showing that it had taken all reasonable steps to find messages that could be considered official records but are no longer in government hands.
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