Comey Is Not the One Whose Unorthodox Actions Are Casting a Cloud over the Election

By Andrew C. McCarthy

Monday, October 31, 2016

How rich of Hillary Clinton to complain now that FBI director James Comey is threatening the democratic process by commenting publicly about a criminal investigation on the eve of an election.

Put aside that Comey did not say a single thing last week that implicates Clinton in a crime. The biggest coup for Clinton in the waning months of the campaign has been Comey’s decision not to prosecute her — a decision outside the responsibilities of the FBI director and publicly announced in a manner that contradicts law-enforcement protocols. There has been nothing more irregular, nothing that put law enforcement more in the service of politics, than that announcement. Yet, far from condemning it, Mrs. Clinton has worn it like a badge of honor since July. Indeed, she has contorted it into a wholesale exoneration, which it most certainly was not.

Just to remind those whose memories seem so conveniently to fail, Comey is the FBI director, not a Justice Department prosecutor, much less the attorney general. The FBI is not supposed to exercise prosecutorial discretion. The FBI is not supposed to decide whether the subject of a criminal investigation gets indicted. The FBI, moreover, is not obligated to make recommendations about prosecution at all; its recommendations, if it chooses to make them, are not binding on the Justice Department; and when it does make recommendations, it does so behind closed doors, not on the public record.

Yet, in the Clinton e-mails investigation, it was Comey who made the decision not to indict Clinton. Comey, furthermore, made the decision in the form of a public recommendation. In effect, it became The Decision because Attorney General Loretta Lynch had disgraced herself by furtively meeting with Mrs. Clinton’s husband a few days before Comey announced his recommendation. Comey, therefore, gave Mrs. Clinton a twofer: an unheard-of public proclamation that she should not be indicted by the head of the investigative agency; and a means of taking Lynch off the hook, which allowed the decision against prosecution to be portrayed as a careful weighing of evidence rather than a corrupt deal cooked up in the back of a plane parked on a remote tarmac.

Now, suddenly, Mrs. Clinton is worried about law-enforcement interference in politics. And her voice is joined by such allies as Jamie Gorelick (President Bill Clinton’s deputy attorney general) and Larry Thompson (Comey’s predecessor as President George W. Bush’s deputy attorney general and an outspoken opponent of Donald Trump). Like Mrs. Clinton, Ms. Gorelick and Mr. Thompson were delighted by Director Comey as long as his departures from orthodoxy were helping Clinton’s candidacy. But now, as they wrote in the Washington Post on Saturday, they are perturbed by the threat Comey purportedly poses to “long-standing and well-established traditions limiting disclosure of ongoing investigations . . . in a way that might be seen as influencing an election.”

I will repeat what I said yesterday (at PJ Media) about the Justice Department’s received wisdom that the election calendar should factor into criminal investigations:

Law-enforcement people will tell you that taking action too close to Election Day can affect the outcome of the vote; therefore, it should not be done because law enforcement is supposed to be apolitical. But of course, not taking action one would take but for the political timing is as political as it gets. To my mind, it is more political because the negatively affected candidate is denied any opportunity to rebut the law-enforcement action publicly.

The unavoidable fact of the matter is that, through no fault of law enforcement, investigations of political corruption are inherently political. Thus, I’ve always thought the best thing to do is bring the case when it’s ready, don’t bring it if it’s not ready, and don’t worry about the calendar any more than is required by the principle of avoiding the appearance of impropriety.

Now, as I also discussed in that same column, the problem with which we are currently grappling is caused by Comey’s initial flouting of protocol back in July — the one that thrilled the Clinton camp. There should never be any law-enforcement commentary at any time about a criminal investigation in which charges have not been filed publicly. The FBI and Justice Department should resist confirming or denying the existence of investigations; and if (as frequently happens) it becomes publicly known that an investigation is being conducted, law enforcement should still refuse to comment on the status of the investigation or any developments in it.

The public does not have a right to know that an investigation is under way. The subjects of an investigation do not have a right to know whether the investigation is continuing or has been “closed” — a status I must put in quotes because any dormant investigation can be revived at the drop of a hat if new information warrants doing so.

As Director Comey and the rest of us are being reminded, the demands of ethical law enforcement are forever in tension with the currents of partisan politics. In law enforcement, one is always required to correct the record if a representation made to a court, Congress, or some other tribunal is rendered inaccurate by new information. To put it kindly, correcting misrepresentations is not a habit of our politicians.

There is a very good argument — I would say, an irrefutable argument — that Comey should never have pronounced that the Clinton e-mails investigation was closed (in fact, it would have been appropriate if he had made no public statement about the investigation at all). But having made that pronouncement — which, again, Mrs. Clinton was thankful to have and which she has ceaselessly exploited — he was obliged by law-enforcement principles to amend it when it was no longer true. What if he hadn’t done so? Then, after the election, when it inevitably emerged that the investigation was actually open, those who had relied on his prior assertion that it was closed would rightly have felt betrayed.

For now, everyone ought to take a deep breath. All we have here is a statement that an investigation is ongoing. No charges have been filed, and none appear to be on the horizon, let alone imminent.

The Clinton camp is in no position to cry foul about anything. In announcing his recommendation against indictment, Comey not only gave Clinton the benefit of every doubt (preposterously so when one reads the FBI’s reports). He also based his decision primarily on his legal analysis of a criminal statute, which is far removed from the responsibilities of the FBI. Indeed, Comey gilded the lily by claiming that no reasonable prosecutor would disagree with his analysis — which was a truly outrageous claim coming from an investigator with no prosecutorial responsibilities, even if it did not inspire a lecture from Ms. Gorelick and Mr. Thompson on Justice Department traditions.

On the other hand, Comey hasn’t said anything more than that the investigation of the mishandling of classified information by Mrs. Clinton and her underlings remains pending. That is a true statement. Again, it does not mean charges will be filed. Indeed, I didn’t hear Director Comey say he had changed his mind about the requirements for proving guilt under the espionage act. The fact that I think he is dead wrong on that subject is beside the point, since the Justice Department has endorsed his reasoning. So it’s not like the recovery of additional classified e-mails from a Weiner/Abedin computer — if that happens, which we are not likely to know for a while — would automatically result in indictments.

It is fair enough to say that Director Comey should not have started down the wayward road of making public comments about pending investigations in which no charges have been filed. Such comments inexorably lead to the need to make more comments when new information arises. Not that the director needs advice from me, but at this point, he ought to announce that — just as in any other investigation — there will be no further public statements about the Clinton investigation unless and until charges are filed, which may never happen.

As for the election, Mrs. Clinton is under the cloud of suspicion not because of Comey but because of her own egregious misconduct. She had no right to know back in July whether the investigation was closed. She has no right to know it now. Like any other criminal suspect, she simply has to wait . . . and wonder . . . and worry.

There were other worthy Democrats, but the party chose to nominate the subject of a criminal investigation. That is the Democrats’ own recklessness; Jim Comey is not to blame. And if the American people are foolish enough to elect an arrantly corrupt and compromised subject of a criminal investigation as our president, we will have no one to blame but ourselves.