This may sound strange coming from someone who doesn’t expect Hillary Clinton to be indicted and doesn’t think she should be, but I’ve been worrying about what will happen if she isn’t.
There is a school of people — a big school, judging from my email — for whom there are only two possibilities:
Either Clinton is charged with a crime for mishandling classified information on her private server — an outcome, this group thinks, that should be devastatingly obvious to anyone with half a brain. Or the Justice Department will squelch the indictment out of a politically motivated desire to protect the likely Democratic presidential nominee. The only disagreement here involves whether Attorney General Loretta E. Lynch will act on her own or under orders from President Obama.
Heads, Clinton’s indicted; tails, they’re corrupt. For this crowd, there is no outcome here that contemplates independent, sober-minded prosecutors looking at the facts and the law and reaching a contrary conclusion.
This attitude presents a problem, not so much for Clinton — she’ll be happy to accept the no-indictment outcome, and the people who reject it will never be Clinton voters anyway — as for the criminal justice system. It bears some thinking at the top levels of the Justice Department and the FBI about whether there is some way to mitigate the suspicion by making more information public than is the norm.
Once, there was a statutory solution to this understandable skepticism, albeit a hugely imperfect one, in the form of the independent counsel law. Clinton knows better than anyone how prolonged and risky this route can be; the independent counsel originally named to investigate the Whitewater investment by Bill and Hillary Clinton ended up with Monica Lewinsky.
Even now that the statute has lapsed, the Justice Department retains the authority, by regulation, to appoint a special counsel when the attorney general “determines that criminal investigation of a person or matter is warranted” and “would present a conflict of interest for the Department or other extraordinary circumstances.”
There’s no indication that Justice has contemplated this step; indeed, it’s not clear it has even determined that a “criminal investigation” is warranted. In any event, turning to a special counsel now, with the clock ticking toward Election Day, would not serve the public well. What it needs is maximum information speedily revealed.
FBI agents and federal prosecutors tend to be allergic to releasing information, appropriately so. (There is that pesky matter of grand jury information, which is supposed to be kept secret, although there’s no indication this inquiry has even reached the grand jury stage.) Prosecutors either indict or stand down, no explanation provided. But in the case of a public figure whose conduct has drawn intense scrutiny, that approach may not be optimal — for the individual involved or, more important in this case, for the public.
There is useful guidance in both the independent counsel law and the department’s own precedents. The independent counsel law required the prosecutor to file a final report — hence the infamous Kenneth Starr report on Lewinsky — that the supervising court could make public.
Similarly, the Justice Department in 2010 issued a 92-page investigative summary that detailed the evidence against Bruce E. Ivins, the Fort Detrick researcher who was the suspect in the 2001 anthrax attacks but who committed suicide while under investigation.
Ordinarily, that would have ended the case, but officials determined that the intense public interest justified releasing more information. Tellingly, that took a year to accomplish — time that is not available in this circumstance.
So that leaves — assuming no indictment — an unsatisfying situation. Ordinarily, in such cases, there would be no official announcement at all. In some high-profile cases, Justice has taken the unusual step of announcing that the matter is closed. In 2012, then-Attorney General Eric Holder announced that there would be no prosecution in the death of two CIA detainees overseas, saying that “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
In the Clinton situation, there has to be a way to provide more information, in a timely way, from a credible source. Senior Justice officials will be mistrusted whatever they say, but what about FBI Director James B. Comey, who served in the Justice Department under George W. Bush?
If this inquiry is closed without further action, the public will need some explanation beyond everyone-just-move-along-now. Not for Clinton, but for the sake of the Justice Department and the professionals who work there.
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