When Hillary Clinton delivered a campaign post-mortem to her major supporters in a telephone conference call late last week, she blamed her loss in the presidential election on FBI Director James Comey. She should have blamed the loss on herself. Her refusal to safeguard state secrets while she was secretary of state and her failure to grasp the nationwide resentment toward government by the forgotten folks in the middle class were far likelier the cause of her defeat than was Comey.
Yet it is obvious that law enforcement-based decisions in the past four months were made with an eye on Election Day, and the officials who made them evaded the rule of law.
Here is the back story.
The statutory obligation of the FBI is to gather evidence to aid in the prosecution or prevention of federal crimes or breaches of national security. The process of complying with this obligation necessarily involves making some legal judgments about the relevance, probity and even lawfulness of the gathered evidence. These judgments are sometimes made on the streets in an emergency and sometimes made after consultation and consensus. But the whole purpose of this evidence-gathering and decision-making is to present a package to the Department of Justice, for which the FBI works, for its determination about whether or not to seek a prosecution.
In cases in which subpoenas are needed, the FBI must work in tandem with the DOJ because subpoenas in criminal cases can be issued only by grand juries and only DOJ lawyers can ask grand juries to issue them. Usually, the FBI and the DOJ work together to present what they have to a grand jury in order to build a case for indictment or to induce a grand jury to issue subpoenas and help them gather more evidence.
Federal judges become involved when search warrants or arrest warrants are needed. These are often emergent situations, as the evidence to be seized or the person to be arrested might be gone if not pursued in short order. They require the presentation of evidence to a judge quickly and in secret. It is the judge's role to decide whether the DOJ/FBI team has met the constitutional threshold of probable cause. Probable cause is met when the prosecutorial team shows the judge that the evidence the team seeks from the execution of the warrant more likely than not will implicate someone in criminal behavior.