If John Huber, the Utah-based U.S. attorney appointed to look into the possible surveillance abuses by the FBI and Justice Department, ends up in Washington, he'll become a "de facto special counsel," rather than just a prosecutor conducting an investigation, Judge Andrew Napolitano said Tuesday.
But, if Huber remains in Utah and conducts his investigation from there, he'll be "toothless," Napolitano, the chief judicial analyst for Fox News, told "Fox & Friends."
"All the evidence is in D.C.," said Napolitano. "You are examining the National Security Agency, the FBI, the DOJ, present and past. The Utah grand jury does not have jurisdiction over events ... he will be toothless if he stays in Utah."
However, should Huber come to Washington, he'll get "a half-dozen federal prosecutors assigned to him and a dozen or so FBI agents assigned to him. He [then] is a de facto special counsel. He is doing what needs to be done."
As long as Huber remains in Utah, his hands will remain tied, as he won't be able to empanel a grand jury, Napolitano explained. However, if he comes east, Huber can call his grand jury, which can issue subpoenas, and if those don't work, he can seek search warrants from a federal judge.
"That's the way it's supposed to work," said the judge. "If he stays in Utah, he cannot empanel a grand jury,"
Last week, Attorney General Jeff Sessions appointed Huber, the chief U.S. prosecutor for Utah, to examine several matters, including allegations that members of the FBI and the Justice Department exonerated former President Bill Clinton and wife Hillary of wrongdoing in the Uranium One matter, and to look into claims that the FBI and DOJ abused the Foreign Intelligence Surveillance Act to spy on the Trump campaign.
Without a grand jury, there can't be an effective criminal prosecution, he added.
"You present evidence to the grand jury," he said. "You get the grand jury to issue a subpoena. If you need a search warrant, the first thing the judge is going to say, as I used to say, 'well, did the grand jury try to get this by subpoena and it didn't work? You don't have a grand jury? What kind of an investigation is this?'"
Sessions, however, wrote in his announcement letter that Huber would remain in Utah, and that is "troublesome," said Napolitano.
"He cannot, from Utah, run a grand jury and an investigation 2,500 miles away," he said.