Some are More Equal than Others

Some are More Equal than Others

As a retired FBI Agent, I can state unequivocally that in the many cases I investigated and presented to the United States Attorney for prosecution, I never once told the USA what to do with the case. Several of my retired friends have assured me they had similar experiences. Somewhere, there probably is an ex-Agent who will tell you he made such a decision himself on behalf of the USA; stranger things have happened. But the decision as to whether to prosecute a case lies entirely within the purview of the USA or an Assistant USA—or the Attorney General of the United States--NOT the FBI.

Some Agents have tried to persuade the USA to prosecute a case that they felt strongly about, mostly with limited success. However, if the Agent is unable to prove any of the elements of the crime as set out in the United States Code of Criminal Justice, then the matter is dropped—period.

It is difficult to imagine a bona fide Agent setting out in a report for the prosecution all the elements of the crime, stating affirmatively that the subject had violated each and every element of that crime—and then averring that it does not rise to the level of a prosecutable case. He has just assured his listeners of the obverse, and now he says he does not recommend prosecution. That is insane.  

I have heard that COMEY might have chosen this route so that the people could be apprised of the facts, because a lengthy Grand Jury might prolong indictment until after the election. Fine. That is one way of doing it. But why not do the right thing and present the evidence to Attorney General LORETTA LYNCH? If she refused to prosecute or to immediately put the evidence before a Grand Jury, COMEY should have tendered his resignation, with an even fuller explanation that he is compelled to resign because of inaction on the part of the Attorney General in prosecuting a very viable case. By his failure to pursue this prosecution vigorously, COMEY soiled the reputation of the FBI and American justice in general.

The Director tried to assure anyone who would listen that the decision rendered in this matter was not to be construed as favorable to the rich and powerful—that there is not another system of justice that applies to the poor and unimportant. Were you reassured by that statement? Neither was I.

Confidence in our system of jurisprudence has been steadily eroding since the administration of President Bill Clinton. The Director of the FBI made this decision in the matter of Hillary Clinton’s misuse of her email while serving as Secretary of State so that the Attorney General would not have to. That she would have made the same decision is little doubted. Taking it out of her hands saved Ms. LYNCH and the President from embarrassment and criticism. I believe the result will be a further hastening of the loss of confidence that the American people feel they can place in the very system that is ostensibly there to protect them.