[Congressional Record Volume 162, Number 148 (Thursday, September 29, 2016)]
[Extensions of Remarks]
[Page E1413]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          UNTOUCHABLE NO MORE

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                              HON. TED POE

                                of texas

                    in the house of representatives

                     Wednesday, September 28, 2016

  Mr. POE of Texas. Mr. Speaker, as a former prosecutor and county 
Judge, I am very concerned by the press conference held on July 15th 
the Director of the FBI, James Comey. The press conference was carried 
live on many news channels, and Director Comey spoke in great detail 
(over 2,300 words), regarding procedures in her use of a personal email 
server while working as Secretary of State.
  During this press conference, Director Comey stated: ``Although there 
is evidence of potential violations of the statutes regarding the 
handling of classified information, our judgment is that no reasonable 
prosecutor would bring such a case.''
  Not only did this press conference likely violate FBI procedure, such 
a public accounting of alleged misdeeds while not recommending charges 
made it nearly impossible for the Department of Justice to do their job 
in this case. The FBI is an investigating agency, not a prosecuting 
agency or a judge and jury. Such a public determination of a case is 
unprecedented and highly prejudicial. The FBI should investigate and 
research the facts; determining whether or not those facts constitute a 
crime is not their job.
  It appears that Comey's statement was a violation of internal DOJ 
procedures. Per DOJ regulations, in federal cases, the prosecutor's 
decision to bring criminal charges is governed by the United States 
Attorney's Manual. USAM 9-27.000, titled ``Principles of Federal 
Prosecution'' contains the DOJ's written guidance to prosecutors about 
decisions to initiate or decline prosecution. Specifically, 9-27.220(A) 
instructs prosecutors to file criminal charges in all cases where there 
is a violation of federal law and the evidence is sufficient to obtain 
a conviction, unless one of three grounds exist:
  Lack of a substantial federal interest;
  The defendant is subject to prosecution in another jurisdiction; or
  The existence of adequate non-criminal alternatives to prosecution.
  It is not clear from the Comey statement which of these exceptions he 
thinks applies in this case. Regardless, the determination of whether 
or not to pursue charges in the case does not reside with an 
investigative agency like the FBI. By publicly making this statement, 
Director Comey made it practically impossible for DOJ to fully fulfill 
their duties under 27.220(A).
  There is no provision or practice that permits the FBI (or any other 
federal law enforcement agency) to make recommendations to the 
prosecution in such a public manner. This statement violated practice 
and procedure and further shows that this investigation was flawed from 
the beginning. Secretary Clinton received different treatment than any 
rank and file employee at the State Department would have received in 
such an instance. A rank and file employee would have, at the very 
least, lost their security clearance had they engaged in conduct 
similar to that of Secretary Clinton.
  In the FBI ``Manual of Investigative Operations and Guidelines'' 
section 1-2, a number of policies and procedures are laid out for how 
the FBI should behave and conduct criminal investigations. 
Specifically, section 1-2 (1) states: ``The FBI is charged with the 
duty of investigating violations of the laws of the United States and 
collective evidence in cases in which the United States is or may be a 
party in interest''. In addition, section 1-2 (3) states: ``Results of 
investigations are furnished to United States Attorneys and/or 
Department of Justice.''
  There is not a section in this manual that permits or directs the FBI 
to publicly state that the facts they investigated were not sufficient 
to warrant prosecution; in fact the manual clearly indicates that these 
facts should be turned over to either a US Attorney or the DOJ when 
there is sufficient evidence that a crime occurred. Director Conley 
stated that ``there is evidence of potential violations of the statutes 
regarding the handling of classified information''. Despite this 
finding, Director Comey appears to have veered from FBI procedures to 
make a public statement that no prosecution was warranted. It is 
unclear what legal standard was used to make this determination and 
appears to be far outside what is permitted under the policies and 
practice of the FBI. There was a time when the FBI was known as ``The 
Untouchables'' because they were above politics; those days are over.
  And that's just the way it is.

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