There is one clear, though obscured and denied, reality stemming from FBI Director Jim Comey’s extremely unusual announcement that “no reasonable” prosecutor would “bring such a case”: The only reason anyone cares about this matter is the presidential election.
But for Hillary Clinton running for president, no one would give a hoot about her emails. And so, those who do not support her want to see her indicted, or at least charged, in order to influence the outcome of the election.
There are some other, slightly less clear, aspects to Comey’s announcement.
- That he used the phrase “extremely careless” because it is not a legal term of art, a mens rea as set forth in a federal offense (as “gross negligence” would have been).
- That anyone other than Hillary Clinton might very well have been indicted, or at least charged, for engaging in similar conduct.
So why did Comey do this? As to the “unusual” announcement, it’s the outgrowth of the inappropriate meeting between Attorney General Loretta Lynch and Bill Clinton in her plane a few days earlier, which, upon discovery, gave rise for calls for her to recuse herself from the decision-making process as to Hillary Clinton. Lynch suddenly appeared conflicted, potentially influenced by a former president. so Hillary Clinton’s opponents cried foul. Lynch responded that she would defer to Comey’s recommendation, and that was accepted as the “right” thing to do.
Why, then, be surprised that Comey made a public recommendation? Because it didn’t pan out the way it was expected. Perhaps the Bill Clinton meeting was a brilliant tactic to get Lynch off the hook, remove her from the most volatile political decision an Attorney General would ever be asked to make, and put it instead on the “neutral” shoulders of the FBI Director.
Comey is a (largely*) career prosecutor. He came out of SDNY, served at Main Justice under the Baby Bush administration, and was appointed in 2013 to a ten year term of FBI Director by President Obama. He’s as much of an honest broker as there is in Washington between the political parties.
So why this “game”? Had the outcome of this investigation been charges, it might well have decided a presidential election. Had the circumstances been a little worse, more smoking guns and dead bodies, it might well have been impossible to credibly skirt an indictment. But Hillary’s conduct was unintentional, albeit “extremely careless,” and while she may well have been hacked and revealed secrets to enemies, there is no proof that happened. Just barely enough to squeeze through a plausible decision not to indict, and thereby remove the criminal justice system from determining the political outcome of a presidential election.
Of course, “plausible” and “credible” are subjective, so your mileage may (and likely will) vary.
And then there are some additional considerations. Some very principled folks will properly be deeply disturbed by the hypocrisy of a powerful person getting a free pass from prosecution when the less powerful would not. There is certainly good reason for this, but it has to be taken in context. There is nothing ordinary about a presidential candidate’s electoral aspirations being contingent on the outcome of a criminal investigation, especially one not involving malevolent intent.
And while it’s true that it is not Comey’s call to decide that Hillary Clinton should not be indicted (and, indeed, it isn’t, in fact, his call, as nothing precludes a prosecutor from indicting her despite Comey’s recommendation), his recommendation was sought mere days earlier. You asked for it. You got it. What’s the beef?
Even without recommending an indictment, Comey’s announcement will unavoidably become a huge influence in the upcoming election. Within hours. Reason created this video:
The New York Times offered this headline in reaction:
F.B.I.’s Critique of Hillary Clinton Is a Ready-Made Attack Ad
For those who either can’t, or refuse, to see the opposite perspective, Patrick Healy spells it out:
She has spent months describing Mr. Trump as “reckless,” “unprepared” and “temperamentally unfit” to be president, and she has pointed to her four years as secretary of state and eight in the Senate as unparalleled preparation for becoming commander in chief.
Yet in just a few minutes of remarks, Mr. Comey called into question Mrs. Clinton’s claims of superiority more memorably, mightily and effectively than Mr. Trump has over the entire past year. And with potentially lasting consequences.
As some might rightfully react, Comey didn’t “do” anything to Hillary Clinton. Hillary Clinton did it to herself. To the extent she just blew her political appeal, she has no one to blame but herself. If anything, she got away easy, as it’s infinitely more difficult to mount a successful presidential campaign from prison.
Orin Kerr offers the obvious conclusion:
No decision on the Clinton email case will please everyone, of course. But Comey’s announcement takes the path of the least amount of politicalization in a uniquely politically charged case.
Or, in the paradigm of settlements, it leaves no one happy. But while Hillary Clinton may not be judged by twelve, she will be judged. The charges against her will be decided, just not by a petit jury but by the electorate. Even though Comey weaved his way between the words that would have been written in an indictment, so as not to put a presidential election into the hands of prosecutors, his words are still out there, will certainly be used against Hillary, and a verdict will be reached in the court of public opinion when Americans go to the polls to elect a president.
Whether this is the right or wrong way to resolve Hillary Clinton’s email issues will likely divide along lines of politics, but it has made every voting American a juror in her case. Convict or acquit, or nullify because her other political positions are more important to you, or your views on Trump as the alternative make any other choice untenable, a verdict will be reached.
*Comey took some side trips to make the big bucks along the way, like becoming General Counsel of Lockheed Martin, but he always came back to the government.