Ongoing whining about Comey extends to Lynch

Still bitter about James Comey’s role in the presidential election, the Washington Post wonders why Attorney General Lynch didn’t stop the FBI director from sending his letter to Congress announcing that the Clinton email investigation had been reopened. Post reporter Sari Horwitz sees Lynch’s non-intervention as part of a pattern of failure by the Attorney General “to navigate the unusually ugly politics of 2016.” There isn’t much question about which team Horowitz is playing for.

There was nothing inappropriate about Comey sending his letter. He had testified under oath to Congress that the investigation was closed. He had told the American public the same thing. In my view, this created an obligation to let Congress and the public know that it now was open.

It would be nice, therefore, if we could say that Lynch didn’t order Comey not to send the letter because sending the letter was appropriate conduct. However, Lynch didn’t view the matter this way. Top Justice Department officials tried to persuade Comey not to inform Congress. Why didn’t Lynch order him not to?

The answer, I think, is that she believed word of such an order would get out. Comey might have disobeyed the order. If not, it’s likely that he or others in the FBI would have leaked word that the FBI was again investigating based on newly discovered emails.

Thus, ordering Comey not to inform Congress would have been worse for Hillary Clinton than allowing him to proceed. In both scenarios, the public would know that there were yet more emails and that the FBI was therefore investigating once more. In the Lynch intervention scenario, the public would also know that the Obama Justice Department had tried to keep the public, and Congress, from finding out.

Lynch was already under fire for her meeting with Bill Clinton on that tarmac in Phoenix a few days before Comey closed the investigation and announced there would be no prosecution. This fact would have made it all the worse for Lynch, and for Hillary, if it became known that she ordered Comey not to tell Congress he had reopened the investigation. But even without the encounter with Bill Clinton, it would have been counterproductive to order Comey to be silent — or so Lynch likely concluded.

Lynch may also have been confident that Hillary would win the election even if Comey sent his letter. Clinton remained heavily favored, albeit somewhat less so, after Comey sent it.

I don’t view the handling of the email investigation as a failure (and I say this as someone who had little enthusiasm for Donald Trump during the campaign). As she and her husband have done so many times, Hillary Clinton put third-parties — here, the FBI and the Justice Department — in an extraordinarily uncomfortable position by ignoring the rules — here, the rules, and arguably the law, on government emailing practice and the handling confidential information.

I have argued that Comey’s actions throughout the affair were understandable given the circumstances and that he tried his best not to favor either side in the election. His assessment of the email scandal — that Hillary acted recklessly but not in violation of the law as it has been applied– was reasonable (though incorrect in my view) and voters deserved to hear it before electing a new president.

Both sides can (and do) argue that Comey made mistakes that affected the vote. But when Hillary Clinton decided, so characteristically, that the rules didn’t apply to her, she assumed the risk that a conscientious public servant like Comey might make good faith errors of judgment in sorting out the resulting mess.

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