James Comey’s recommendation not to prosecute Hillary Clinton, even though most of his statement today tended to show she should be prosecuted, reminds me of Chief Justice Roberts’ decision four years ago to uphold Obamacare’s individual mandate on the theory that it imposed a tax, not a penalty.
I believe Roberts reached this decision because he didn’t want unelected judges to strike down the will of the legislature on a matter as momentous as Obamacare. He didn’t want the Supreme Court to place its thumb on the scales to that degree.
I’m less clear about Comey’s motive, but I suspect it was similar. Recommending the prosecution of a major party’s presumptive nominee for president is an enormous intrusion on the political process. My guess is that Comey was simply unwilling to go that far.
The sentiment I’m ascribing to Chief Justice Roberts and Director Comey is admirable up to a point. It is also essentially conservative, or at least consistent with some strands of conservatism.
Conservatives have often held that, because overturning the people’s will as expressed through their legislators is undemocratic, judges should try to interpret laws in a way that renders them constitutional. I believe that Roberts strained too hard, especially given that the interpretation he came up with was repudiated by the legislation’s backers in order to secure its passage. However, I’m focused now on motive, not the merits.
Indicting a candidate whose party has selected as its presumptive nominee can also be viewed as a major interference with the people’s will. Democratic voters had available to them most of the facts Comey laid out today. Yet, they chose Hillary over Bernie Sanders, apparently because, like Sanders, they didn’t care about the emails.
Obviously, the desire of a political party to run a particular candidate can’t override the criminal law. But in a borderline case — one where both a decision to prosecute and a decision not to would be reasonable — the better, more conservative option arguably is not to prosecute. I would expect most conservatives to be quite unhappy if, in this scenario, the FBI recommended prosecuting a conservative presidential candidate. I know I would be.
Is Clinton’s case one in which a fair and reasonable prosecutor could go either way? It doesn’t look that way to me. Clinton’s gross negligence seems clear, as do the other elements of the felony statute Comey alluded to.
My point, though, is that this may be another case of a non-leftist making a strained decision that favors the left out of respect for the democratic process — i.e., a strong reluctance to disturb its outcomes. In other words, the decision seems like the product of restraint.
So too, in my view, was Ken Starr’s decision all those years ago not to indict Hillary Clinton in connection with her theft and concealment of billing records that showed her involvement in “Whitewater” related matters. Today isn’t the first time Hillary got a pass on criminal behavior.
Restraint, as I’ve suggested, is a conservative virtue. The problem is that the left isn’t at all restrained. The processes and concepts that non-leftists cherish — the role of the legislature, free speech, freedom to follow one’s religious conscious, the view that rules apply to everyone — mean nothing to leftists.
This is why we got executive amnesty. It’s why Democrats insisted that the individual mandate wasn’t a tax when the legislation was before Congress, then decided it was a tax when the Supreme Court reviewed the matter. It’s why Hillary Clinton willfully ignored both State Department rules and considerations of national security in using a private server and then lied repeatedly about the matter (as Comey’s statement confirms she did).
So we see distinguished non-liberals of good faith falling all over themselves to be restrained in the name of processes the left is undermining as fast as it can. It’s rather obvious where this will lead.