Law enforcement officials tend to inhabit a universe that is both binary and terse: prosecute or don’t prosecute. Let the facts in the indictment speak for themselves. No further comment.
So the remarks by FBI Director James B. Comey accompanying his announcement that he would not recommend bringing charges against former secretary of state Hillary Clinton were, as he acknowledged, “unusual.” Indeed, that word scarcely captures what happened. Comey’s comments were an extraordinary, important and, on balance, justifiable departure from normal practice. Clinton may not be better off for them, but the country is.
The decision not to bring charges was the correct one, but a simple announcement to that effect would have deprived the public — deprived voters who are being asked to choose a president — of any understanding of the judgment underlying that determination. It would have kept hidden from public view information that is insufficient to support criminal charges but that many voters may deem relevant to their assessment of Clinton’s fitness for the presidency — and that they can test against Clinton’s own, often contradictory account.
Some Democrats will grumble privately — they already are — about Comey’s commentary, even as they publicly celebrate the announcement that Clinton is effectively in the clear. Some Republicans will assert, without justification, that it shows Comey somehow taking a dive for Clinton; it took no time for Donald Trump to tweet that the outcome represented further proof that “the system is rigged.”
Actually, it showed evidence of a system under stress — a presumptive presidential nominee facing criminal jeopardy; an investigation conducted under the tense deadline of an impending election; an inevitable cloud of partisan distrust made even darker by the unfortunate tarmac meeting last week between Bill Clinton and Attorney General Loretta Lynch.
Comey took this bad situation and — acting on his own — made it better. “They do not know what I am about to say,” Comey said of his colleagues at Main Justice.
Let us count the ways that Comey’s behavior was extraordinary:
That he made the statement at all, given that charging decisions are left to the prosecutors, without an interim assessment by investigators — even the FBI director himself — preemptively asserting that “no reasonable prosecutor would bring such a case.”
That he provided a synopsis of both the facts of the case and the legal analysis underlying his no-go conclusion that previous prosecutions presented situations involving “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
And that he engaged in extensive editorializing: Clinton and her colleagues “were extremely careless in their handling of very sensitive, highly classified information.” Eight of the email chains concerned top-secret, sensitive information. He said that “any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.” Here I become slightly queasy about Comey’s self-appointed truth-teller role. But I understand the impulse: to err on the side of tough assessment even as he declines to recommend charges.
There’s more. Comey took a barely disguised slap at President Obama, noting that “there were many opinions expressed by people who were not part of the investigation — including people in government — but none of that mattered to us.”
Gee, what people could Comey be referring to? Maybe the one who asserted in April that “I continue to believe that she has not jeopardized America’s national security”? (Note that Comey said “it is possible that hostile actors gained access to Secretary Clinton’s personal email account” and in fact penetrated “the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account.”)
Comey undercut Clinton’s self-congratulatory assertion that her team provided all work-related emails from her private server, observing that the FBI unearthed “several thousand” additional such emails.
And he suggested, rather pointedly, that the decision not to prosecute might not be the end of the matter, raising the prospect of yanked security clearances or other “administrative sanctions.”
Comey proved his independence during the George W. Bush administration when, as deputy attorney general, he headed off White House officials’ efforts to persuade John Ashcroft to reauthorize a domestic surveillance program while the then-attorney general was recovering from surgery in a hospital intensive-care unit. On Tuesday morning, Comey proved the point again. He is no team player, which in this setting is no criticism — it is a high compliment.
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