Justice Department officials could have overruled FBI Director James B. Comey’s surprising decision to notify Congress about the renewed investigation into Hillary Clinton’s email server, but they stopped short of ordering him to back down.
Their decision partly reflected the institutional power of the FBI director, Comey’s personality and the political realities they were facing, according to current and former Justice officials. In this case, officials said Comey put the department in an untenable position by informing them that he was sending a letter to Congress because he had an obligation to lawmakers or they would feel misled.
It was only untenable if Attorney General Loretta Lynch, already compromised by her meeting with Bill Clinton, wanted to steer clear of this matter. Others have noted that she had the power to order Comey not to send the letter and the responsibility to enforce the department’s tradition of noninterference.
In fact, taking a few steps back, Lynch never should have permitted Comey, who holds an investigative and not a prosecutorial post, to put out a statement not to recommend prosecution. He could have made that recommendation, but it is the Justice Department’s job to explain whether a “reasonable prosecutor” could bring the case. If pressured to talk to Congress, a Justice Department lawyer should have declined. Testifying in front of lawmakers — as we’ve seen — is a recipe for politicizing prosecutorial decisions.
Lynch, of course, had taken herself out of the picture. (Query: Why was she discouraging but not ordering Comey to do something? She is not supposed to be involved. Period.) That is why she has a deputy, Sally Yates. Her bio at the Justice Department reads:
Ms. Yates has served in the Department of Justice for twenty-seven years. She began her public service career in September 1989 as an Assistant U.S. attorney in the U.S. attorney’s office in the Northern District of Georgia. Over the next two decades, she prosecuted a wide range of cases, including numerous white-collar fraud and political corruption matters, and served as the lead prosecutor of Olympic bomber Eric Rudolph. Ms. Yates held several supervisory positions within the office until 2010, when she was appointed by President Obama to lead the office as its first female United States Attorney.
Isn’t Yates exactly the sort of person, who has served in Democratic and Republican administrations, you want making this call?
To put it mildly, Comey has been operating outside his lane since he came out with his written statement in July. He had an obligation to avoid doing so, and Lynch had an obligation to prevent him if he tried. DOJ veteran Jack Goldsmith and Benjamin Wittes argue that “this appears to be classic responsibility-dodging behavior that one of us (Jack) often witnessed during his time in the Justice Department.” They explain, “Sending a staffer to express a preference is what senior officials do when they do not have the courage of their convictions and do not want to take responsibility for action. The Attorney General was fence-riding; she didn’t want Comey to send the letter, but she also didn’t want the responsibility for ordering him not to send it.” It’s not clear why she didn’t want Yates to make the call, or why Yates wouldn’t exert her authority.
If the Justice Department didn’t want to do its job, Comey still was wrong to insert himself (by opining on the reason not to prosecute, and by testifying before Congress). In doing so, he damaged the FBI. Lynch, meanwhile, severely undercut the institutional role of the Justice Department. She shouldn’t have met with Bill Clinton; once she did, she should have given her deputy full authority and recused herself from all conversations, decisions, etc. As we have observed, just about no one in this whole mess acted properly. No wonder people are so despondent about politics.