Wednesday’s criminal referral by 11 House Republicans of former Secretary of State Hillary Clinton as well as several former and serving top FBI and Department of Justice (DOJ) officials is a giant step toward a Constitutional crisis.

Named in the referral to the DOJ for possible violations of federal law are: Clinton, former FBI Director James Comey; former Attorney General Loretta Lynch; former Acting FBI Director Andrew McCabe; FBI Agent Peter Strzok; FBI Counsel Lisa Page; and those DOJ and FBI personnel “connected to” work on the “Steele Dossier,” including former Acting Attorney General Sally Yates and former Acting Deputy Attorney General Dana Boente.

With no attention from corporate media, the referral was sent to Attorney General Jeff Sessions, FBI Director Christopher Wray, and U.S. Attorney for the District of Utah John Huber.  Sessions appointed Huber months ago to assist DOJ Inspector General (IG) Michael Horowitz.  By most accounts, Horowitz is doing a thoroughly professional job.  As IG, however, Horowitz lacks the authority to prosecute; he needs a U.S. Attorney for that.  And this has to be disturbing to the alleged perps.

This is no law-school case-study exercise, no arcane disputation over the fine points of this or that law. Rather, as we say in the inner-city, “It has now hit the fan.”  Criminal referrals can lead to serious jail time.  Granted, the upper-crust luminaries criminally “referred” enjoy very powerful support.  And that will come especially from the mainstream media, which will find it hard to retool and switch from Russia-gate to the much more delicate and much less welcome “FBI-gate.”

As of this writing, a full day has gone by since the letter/referral was reported, with total silence so far from The New York Times and The Washington Post and other big media as they grapple with how to spin this major development. News of the criminal referral also slipped by Amy Goodman’s non-mainstream DemocracyNow!, as well as many alternative websites.

The 11 House members chose to include the following egalitarian observation in the first paragraph of the letter conveying the criminal referral: “Because we believe that those in positions of high authority should be treated the same as every other American, we want to be sure that the potential violations of law outlined below are vetted appropriately.” If this uncommon attitude is allowed to prevail at DOJ, it would, in effect, revoke the de facto “David Petraeus exemption” for the be-riboned, be-medaled, and well-heeled.

Stonewalling

Meanwhile, the patience of the chairmen of House committees investigating abuses at DOJ and the FBI is wearing thin at the slow-rolling they are encountering in response to requests for key documents from the FBI.  This in-your-face intransigence is all the more odd, since several committee members have already had access to the documents in question, and are hardly likely to forget the content of those they know about.  (Moreover, there seems to be a good chance that a patriotic whistleblower or two will tip them off to key documents being withheld.) 

The DOJ IG, whose purview includes the FBI, has been cooperative in responding to committee requests for information, but those requests can hardly include documents of which the committees are unaware.

Putting aside his partisan motivations, House Intelligence Committee Chair Devin Nunes (R-CA) was unusually blunt two months ago in warning of legal consequences for officials who misled the Foreign Intelligence Surveillance Court in order to enable surveillance on Trump and his associates. Nunes’s words are likely to have sent chills down the spine of those with lots to hide: “If they need to be put on trial, we will put them on trial,” he said.”The reason Congress exists is to oversee these agencies that we created.”   

Whether the House will succeed in overcoming the resistance of those criminally referred and their many accomplices and will prove able to exercise its Constitutional prerogative of oversight is, of course, another matter — a matter that matters.

And Nothing Matters More Than the Media

The media will be key to whether this Constitutional issue is resolved.  Largely because of Trump’s own well earned reputation for lying, most Americans are susceptible to slanted headlines like this recent one — “Trump escalates attacks on FBI …” — from an article in The Washington Post, commiserating with the treatment accorded fired-before-retired prevaricator McCabe and the FBI he (dis)served.

Nor is the Post above issuing transparently clever warnings — like this one in a lead article on March 17: “Some Trump allies say they worry he is playing with fire by taunting the FBI. ‘This is open, all-out war. And guess what? The FBI’s going to win,’ said one ally, who spoke on the condition of anonymity to be candid. ‘You can’t fight the FBI. They’re going to torch him.’” [sic]

Mind-Boggling Criminal Activity

What motivated the characters now criminally “referred” is clear enough from a wide variety of sources, including the text messages exchange between Strzok and Page.  Many, however, have been unable to understand how these law enforcement officials thought they could get away with taking such major liberties with the law.

None of the leaking, unmasking, surveillance, “opposition research,” or other activities directed against the Trump campaign can be properly understood, if one does not bear in mind that it was considered a sure thing that Secretary Clinton would become President, at which point illegal and extralegal activities undertaken to help her win would garner praise, not prison.  The activities were hardly considered high-risk, because candidate Clinton was sure to win.

But she lost.

Ray McGovern works with Tell the Word, a publishing arm of the ecumenical Church of the Saviour in inner-city Washington. He served as an Army Infantry/Intelligence officer and then a CIA analyst for a total of 30 years.  In retirement, he co-created Veteran Intelligence Professionals for Sanity (VIPS).