Possibly the only certainty surrounding the FBI’s decision not to indict Hillary Clinton for mishandling sensitive government documents is that we’ll be buried in analysis and commentary for the foreseeable future. That’s why it’s so remarkable that the most important point we’ll hear about the controversy may have already been made – by nationally syndicated conservative columnist Charles Krauthammer.
Addressing FBI Director James Comey’s unwillingness to recommend criminal charges against the presumptive Democratic presidential candidate, Krauthammer provided an explanation that’s far more convincing than the claims that Comey’s conclusion was legally justified (unless the “gross negligence” set as a bar for criminality is indeed substantially different than the “extreme carelessness” the FBI did find).
The Krauthammer take is also more convincing than the charges filling the air that the Republican Comey was responding to political pressure from a Democratic administration, or that he absolved Clinton in exchange for an implicit or explicit promise of an official job if she won the White House. Not that this kind of sleaze is unknown in American politics. But these accusations and insinuations apparently clash with everything said over the years by Democrats and Republicans, including hyper-partisans, about Comey’s integrity.
Krauthammer’s alternative hypothesis was more comforting – but only somewhat so. In his view, Comey wound up opposing criminal prosecution for fear of decisively influencing the presidential election – the nation’s most important political contest – with a legal decision. In Krauthammer’s words, Comey:
“knows if he had indicted her, that’s the end of her campaign. That will be the event of the 2016 campaign history. He will be the — it will be the decision that sways everything the most. I think he didn’t want to be that. And I think it’s because she is running. Not so much she is a Clinton, not so much because of her reputation and all that and her power, but I think Comey did not want to be the person that history remembers as changing the course of this presidential election.”
From a purely human and political standpoint, such reluctance to shape political outcomes through even entirely legitimate exercises of legal authority would be entirely understandable. In many ways, the nation still hasn’t recovered from the Supreme Court’s involvement in the 2000 presidential election’s Florida recount. Another legal decision that further poisons the atmosphere and further polarizes the electorate is the last thing America needs.
Nonetheless, if this was indeed Comey’s rationale, then he greatly overstepped his job description. However defensible this judgment on the merits, precisely because law enforcement and politics should be kept as separate as possible, Comey would have had no business deciding a criminal case based on his (or anyone’s) sense of how even the most important election would be affected. The scope for abuse is so vast that this simply can’t be the justice system’s call.
In fact, such reasoning would be disturbingly reminiscent of former Attorney General Eric Holder’s refusal to prosecute Wall Street kingpins for their role in fostering the financial crisis because he was
“concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.”
Prosecutors are supposed to prosecute – nothing more, nothing less. If they don’t feel free to pursue lawbreakers with a “chips fall where they may” attitude, they inevitably undermine the foundational American belief that no person or institution is above the law. Comey may have had the best of intentions, but even if a sincere and reasonable belief that the public interest required legal restraint motivated him, he would stand guilty of betraying the public trust.