Contrasting FBI role in Watergate and in Clinton email case

[Douglas Caddy]

I submitted the following guest opinion article to the Wall Street Journal on Oct. 1, 2016, but the Journal did not select it for publication. So I am reproducing it here:

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CONTRASTING THE FBI INVESTIGATIONS IN WATERGATE AND CLINTON’S EMAIL CASE

By

Douglas Caddy

 

     An examination of Watergate and Hillary Clinton’s email case reveals striking similarities in how the Federal Bureau of Investigation mishandled both cases, causing the truth to be suppressed.

     On July 5, 1974, the FBI’s Office of Planning and Evaluation (OPE) submitted to the FBI Director its completed “analysis of the FBI’s conduct of the Watergate and related investigations”, a report that can be found in the Len Colodny Collection of Watergate documents at Texas A&M University.

     The OPE analysis declared in part:

     “On June19, 1972, WFO [Washington Field Office] by teletype requested authority to interview Charles W. Colson since information had been developed that [Howard] Hunt had worked for Colson at the White House. On June 22, 1972, [Acting FBI Director L. Patrick] Gray telephonically authorized then Assistant Director Bates to have WFO contact [White House Counsel] John Dean to set up an interview with Colson. Dean subsequently indicated that he would sit in on interviews of White House personnel and all requests for investigation at the White House had to be cleared through him.

     “Criticism of FBI interviews in the presence of Dean and clearing of proposed investigative activities through him is justified. However, there appeared no alternative to WFO and the Accounting and Fraud Section to following this procedure since the decision concerning this had been made between Mr. Gray and Dean, and neither Bureau supervisors nor field agents were in a position to overrule the decisions of the Acting Director.

     “With respect to the submitting of FBI reports to Dean, this is probably the most serious blunder from an investigative standpoint made by Mr. Gray. The facts concerning this development became known outside of Mr. Gray’s staff for the

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first time on February 5, 1973. This is long after the substantive investigation into the Democratic National Committee Headquarters (DNCH) break-in was completed and, in fact, was after the trial of those originally implicated was completed. While Dean’s role as the master manipulator of the cover up was unknown and, in fact, the cover up itself was unknown during the investigation, obviously the furnishing to Dean by Mr. Gray of our reports allowed Dean the total opportunity to plan a course of action to thwart the FBI’s investigation and the grand jury inquiry. There was no way that the FBI personnel could have avoided this situation since it was unknown that Mr. Gray was furnishing the reports to Dean.

     “The principal lesson to be learned from this is that rarely should we conduct interviews in the presence of an attorney and never should we allow the same attorney to sit in on all interviews relative to a certain situation. Further, the FBI reports should be disseminated only to the prosecutor and certainly never to the White House.”

     Four decades after Watergate consider how the FBI has handled Hillary Clinton’s email case. This was best explained by Kimberley A. Strassel in her Sept. 30 Journal column about FBI Director James Comey’s  testimony before the House Judiciary Committee two days earlier:

      “Congress hauled Mr. Comey in to account for the explosive revelation that the government granted immunity to Clinton staffers Cheryl Mills and Heather Samuelson as part of the investigation of whether Mrs. Clinton had mishandled classified information….

     “Ms. Mills was able to extract an immunity deal  avoid answering questions, and sit in on Mrs. Clinton’s FBI interview because she has positioned herself as Hillary’s personal lawyer. Ms. Mills could therefore claim that any conversations or interactions she had with Mrs. Clinton about the private server were protected by the attorney-client privilege.

     “Only here’s the rub: When Ms. Mills worked at the State Department she was not acting as Mrs. Clinton’s personal attorney. She was the secretary’s chief of

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staff. Any interaction with Mrs. Clinton about her server, or any evidence from that time, should have been fair game for the FBI and the Justice Department.”

     Ms. Mills was a witness in the case because she possessed knowledge of Hillary’s email server. To enable her not to have to testify as to what she knew Mr. Comey and the Justice Department anointed her with a fictional attorney-client relationship with Hillary, granted her immunity and then let her sit in on the FBI’s interview of Hillary as the latter’s attorney. This turned the interview into a farce.

     FBI Director Comey’s handling of Clinton’s email case is striking similar in many ways to what FBI Acting Director Gray did in Watergate, who in addition to giving FBI reports to Dean also destroyed Howard Hunt’s files that were in his White House safe. In fact, Mr. Comey went even further than Mr. Gray by appearing to have aided and abetted the cover up in the Clinton case when he announced last July that Mrs. Clinton should not be prosecuted for mishandling classified information. Mr. Comey’s official role was to investigate the case, not to act as prosecutor or as judge and jury, thus effectively terminating the criminal case. In reality the entire legitimate inquiry into whether Hillary’s handling of emails as secretary of state compromised our national security was transformed by Mr. Comey and the Justice Department into a giant farce.

     Hillary served on the staff of the House Judiciary Committee in its investigation into Watergate and proposing impeachment of President Richard Nixon. She must of have learned a thing or two then from studying John Dean’s masterful cover up on how to thwart a criminal investigation. Should she not be elected president, President Obama will likely grant her a pardon from future prosecution, just as President Gerald Ford did for Richard Nixon. In any event neither she nor Mr. Comey will escape historians’ detailed judgment of the handling of her criminal email case.

     [Full disclosure: I served as the original attorney for the Watergate Seven as described in my Journal article of March 24, 1998, “What If Judge Sirica Were With Us Today?” Further, I recently mailed my election ballot back to the local county clerk after voting for Hillary Clinton for President, perceiving  her as the lesser of two great evils.]