Im-Politic: Comey’s Real Motivation?

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2016 election, Charles Krauthammer, classified material, Eric Holder, FBI, Financial Crisis, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, rule of law, Wall Street

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.

Im-Politic: Clinton, Comey, and the Common Sense Test

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2016 election, classified material, emails, FBI, Federal Bureau of Investigation, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, State Department

Yours truly is not a lawyer; never was a lawyer; has no legal education aside from one undergraduate class, harbors no current ambitions to be a lawyer; hasn’t wanted to become one for decades (since the thrill of visiting my late father’s office as a kid wore off); and doesn’t even find lawyer TV shows, movies, or novels all that interesting. Truth in advertising: I did take the law school admission test – because in economically stagnant mid-1970s America, what else was a humanities major supposed to do?

So I’m not qualified to comment from a legal standpoint on the legal aspects of the FBI’s decision not to indict Hillary Clinton. But here are some thoughts from the standpoint of common sense – with a special focus on the Bureau’s judgment that “no reasonable prosecutor” would recommend filing criminal charges against the presumptive Democratic presidential nominee and former Secretary of State.

First, Bureau Director James Comey undercut the “reasonable” part of this contention with his declaration that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” You don’t have to be nitpicker to recognize that this phrasing indicates that the FBI found some evidence of these intentions. I understand that the American system of justice grants prosecutors considerable discretion on such matters. But this discretion surely is not limitless. Is it really standard practice to absolve the subject of an investigation because some (unspecified) standard of clarity wasn’t met? Above all, was there no “reasonable” argument for allowing a trial to settle the question?

Second, Comey seemed to set an awfully high bar for indictment. Explaining that “Responsible decisions…consider the context of a person’s actions, and how similar situations have been handled in the past,” Comey presented a list of conditions that presumably would have to be satisfied:

“[C]learly 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. We do not see those things here.”

Was Comey saying that all four conditions needed to be met? If so, he already ruled out the first. But the second looks fishy. Why do “vast quantities of materials” need to be exposed? Why not, say, a single document saying, e.g., “We’re attacking ISIS on June 1, at 4 PM EST”? Does quality, in other words, have no relevance in the FBI’s calculus?

Moreover, the contention that nothing qualifying as obstruction of justice could be found seems to clash with the finding that Clinton’s lawyers “cleaned their devices in such a way as to preclude complete forensic recovery. ” Since when do honest lawyers assisting an official criminal investigation not err on the side of caution? Indeed, Comey’s conclusion about the lawyers’ conduct was anything but conclusive:

“Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

That is, there’s important evidence that’s still missing. And the Bureau qualified its determination with the phrases “we believe” and “reasonable (that legal mainstay again!) confidence.”

Third, Comey’s overall description of Clinton’s conduct looks like a classic instance of hair-splitting. As he sees it, her behavior was not “grossly negligent” – the apparent standard for criminality. Instead, it was “extremely careless.” What on earth is the difference outside the universe of apologists and public relations flacks?

Moreover, Comey’s definition of “gross negligence” evidently doesn’t encompass his findings that (his own words):

>“There is evidence to support a conclusion 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”: and

>“we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government. ”

None of these points is meant to suggest that Comey’s judgments were incontrovertibly wrong or even unreasonable. They are meant to suggest that the call not to indict Clinton was incredibly close – so close, in fact, and raising so many further questions, that as suggested above, the proper place to resolve them is not inside a prosecutor’s office. It’s at an open criminal trial.

After he delivered the statement, Comey briskly walked off the stage without dealing with the crowd of slavering journalists assembled in front of him. That’s the recent decision of his I understand best.