Two investigations

Noel Francisco and James Burnham practice law at Jones Day in Washington, D.C. They represented former Virginia governor Bob McDonnell against the federal corruption charges brought against him and his wife by the government. The story came to as happy an ending it could have for Governor McDonnell and his wife when the Supreme Court unanimously set aside their convictions this past June and the government subsequently chose to abandon the charges. The Supreme Court opinion in the case (by Chief Justice Roberts) is here>.

In the Wall Street Journal column “The FBI treated Hillary Clinton with kid gloves” (accessible via Google here, the headline really doesn’t capture the severity of the column), Francisco and Burnham now look back on the FBI/DOJ investigation of the McDonnells and contrast it with the faux investigation of Hillary Clinton. They contrast the two investigations on the following points:

• Conduct ambush interviews.

• Immunize only witnesses who can help deliver convictions.

• Investigate and charge all potential crimes.

• Construe “corruption” broadly.

• Claim that concealment proves consciousness of guilt.

Francisco and Burnham arrive at this conclusion:

FBI Director James Comey said that in Mrs. Clinton’s case there was no evidence of criminal intent. Yet she set up a private email server in her basement and permanently deleted thousands of the emails it contained. A plausible motive would be shielding her activities from public scrutiny. The Comey standard—that direct evidence of knowing criminality is needed to prosecute—is certainly not the one that his agency and the Justice Department applied to Gov. McDonnell for more than three years.

To be clear, we aren’t endorsing these heavy-handed tactics, many of which are befitting Inspector Javert of “Les Misérables.” But these are the sorts of things investigators do when they are serious about bringing criminal charges. In deciding whether the investigation into Mrs. Clinton was a real one—as opposed to a grand, expensive spectacle of law-enforcement theater—Gov. McDonnell’s treatment is instructive.

“Instructive” doesn’t quite capture it, but understatement has its uses.