This morning, the FBI announced that Secretary Clinton would not face charges over her private email server. The timing of the announcement was unusual, as was the announcement itself. After all, the FBI does not prosecute cases. And although it advises the DOJ on whether the Department should prosecute, the Bureau traditionally keeps its advice private.
Today’s announcement was a break from precedent. When FBI Director James Comey declared, “no reasonable prosecutor would bring such a case,” his statement offered strategic and legal cover to the Clinton campaign. To understand why, it is important to parse recent comments from Attorney General Loretta Lynch.
After her ill-timed meeting with Bill Clinton, Lynch agreed to recuse herself from the Clinton’s case. Instead, she promised to accept the judgment of the FBI Director and career prosecutors. Her office would only prosecute Hillary Clinton if one or both of those sources gave a green light.
The career prosecutors in question are employees of the DOJ. Unlike Lynch, they are not political appointees. Instead, they have served at the Department for much of their professional lives and are reliably detached from partisan politics. Their office ensures that, if there is a meritorious case against a public figure, someone will be able and willing to take it.
It is true that the political appointees in the DOJ can overrule the career prosecutors. For instance, if one prosecutor tried to prosecute Clinton, Lynch could prevent the trial and halt any charges. But this would be a public action. The Attorney General would need to justify her decision, and that justification would face stiff public scrutiny.
However, in making a statement on national television, Director Comey preempted any action from career prosecutors. Now that the New York Times has reprinted his statement, “No reasonable prosecutors would take the case,” individual prosecutors lack the public standing to bring a case against Clinton. They still have the legal ability to do so. But in the eyes of the public, their efforts can be laughed down. It is their word against the FBI’s.
Now, Comey may be correct that there is no reasonable case against Clinton. I disagree and have written on that topic here. But even if Comey was right on the merits, he erred in making a public announcement. His action gave undue cover to the Clintons, a treatment that ordinary defendants do not receive.
I do believe he had good intentions. In meeting with Bill Clinton, the Attorney General raised reasonable suspicions about conduct of the Clinton investigation. “People have a whole host of reasons to have questions about how we in government do our business,” she admitted. “My meeting on the plane with former President Clinton could give them another reason to have questions and concerns.” Indeed!
With his statement, Comey hoped to restore credibility to the Clinton investigation, to salvage the appearance of fair play. I fear, however, that he has made matters worse.