DEEP WITHIN THE DEEP STATE.

• Author: diGenova, Joseph E.
• Position: NATIONAL AFFAIRS

OVER THE PAST YEAR, facts have emerged that suggest there was a plot by high-ranking FBI and Department of Justice officials in the Obama Administration, acting under color of law, to exonerate Hillary Clinton of Federal crimes and then, if she lost the election, to frame Donald Trump and his campaign for colluding with Russia to steal the presidency. This conduct was not based on mere bias, as has been widely claimed, but rather on deeply felt animus toward Trump and his agenda.

In the course of this plot, FBI Director James Comey, U.S. Attorney General Loretta Lynch, FBI Deputy Director Andrew McCabe, FBI Deputy Director of Counterintelligence Peter Strzok, Strzok's paramour and FBI lawyer Lisa Page, FBI General Counsel James Baker, and DOJ senior official Bruce Ohr-perhaps among others-compromised Federal law enforcement to such an extent that the American public is losing trust. A CBS News poll finds 48% of Americans believe that Special Counsel Robert Mueller's Trump-Russia collusion probe is "politically motivated," a stunning conclusion--and 63% of voters in a Harvard CAPS-Harris Poll believe that the FBI withheld vital information from Congress about the Clinton and Russia collusion investigations.

I spent my early legal career as a Federal prosecutor. I later supervised hundreds of prosecutors and prosecutions as a U.S. Attorney and as an Independent Counsel. I never have witnessed investigations so fraught with failure to fulfill the basic elements of a criminal probe as those conducted under Comey. Not since former Acting FBI Director L. Patrick Gray deep-sixed evidence during Watergate has the head of the FBI been so discredited as Comey is now.

The Clinton email scandal began in 2013 with the House of Representatives investigation into the Sept. 11, 2012, attack on the U.S. embassy in Benghazi, Libya. It was during that investigation that accessing Secretary of State Clinton's emails became an issue, but it was not until The New York Times broke the story on March 2,2015, that Clinton had a secret, personal server that things really took off.

Thousands of emails that the House at first requested, then subpoenaed, conveniently disappeared-remember those reports about BleachBit and the smashing of Clinton's numerous phones with hammers? Clinton and her aides were, to say the least, not forthcoming. It clearly was time for the FBI and DOJ to act, using the legal tools at their disposal to secure the emails and other materials the House had subpoenaed-but that did not happen.

One tool at their disposal was the grand jury-the sine qua non of a criminal investigation. Grand juries are comprised of 16 to 23 citizens who hear a prosecutor's case against an alleged criminal. The subject of the investigation is not present during the entire proceeding, which can last up to a year. A grand jury provides investigators with the authority to collect evidence by issuing subpoenas for documents and witnesses. FBI agents and prosecutors cannot themselves demand evidence-only a grand jury can, or a court, in cases where a subpoena recipient refuses a grand jury's command to provide documents or to testify.

Incredibly, Comey and Lynch refused to convene a grand jury during the Clinton investigation. Thus, investigators had no authority to subpoena evidence or witnesses. Lacking leverage, Comey then injudiciously granted immunity to five Clinton aides in return for evidence that could have been obtained with a subpoena. Even when Clinton claimed 39 times during a July 2, 2016, interview-an interview led by disgraced FBI agent Strzok-that she could not recall certain facts because of a head injury, Comey refused the case agents' request to subpoena her medical records.

Comey claims he negotiated the immunity deals because of his concern about time. Yet, the investigation was opened in the summer of 2015, nearly a year before he cut these deals. Compare this to the DOJ's handling of four-star Marine General James E. Cartwright, who pleaded guilty in October 2016 to providing a false statement about leaking classified information to The New York Times. In that case, the DOJ bragged about its use of subpoenas and search warrants.

Not only was there no grand jury, the FBI never issued a search warrant-something it does when there is concern a person will...