The Justice Department’s inspector general will review aspects of the conduct of FBI director James Comey as it related to the probe of Hillary Clinton’s email practices. The review won’t encompass Comey’s decision not to seek prosecution of Clinton, nor will it extend to Attorney General Loretta Lynch’s conduct.
The inquiry, therefore, is stacked in favor of the Democrats and their talking points. The suspicion will be that it is intended to promote those points.
I can understand not probing Comey’s decision on whether to prosecute; it seems legitimate to focus on process rather than substance. But it’s difficult to justify leaving Lynch out of the equation. Her non-recusal recusal and her meeting with Bill Clinton are matters of process and they seem intertwined with Comey’s conduct.
In theory, it makes sense for an inspector general to engage in a probe of how Comey acted, and the director says he welcomes the review.
In practice, the inspector general’s conclusions will be viewed through the same partisan lens as Comey’s conduct has been. In other words, the conclusions will be accepted by those who find them congenial and rejected by those who don’t. They will settle nothing.
There are few honest brokers any more, and fewer still who are acknowledged as honest brokers once they find themselves in the middle of a political controversy.
Comey, who until recently was considered an honest broker, found himself in a nearly impossible position when the FBI undertook to investigate the Clinton email scandal. His position became even less tenable when Attorney General Lynch met with Bill Clinton and then more or less took a powder.
The tradition at the Justice Department is to avoid any action that could affect a candidate during the latter stages of an election season. But this tradition was impossible to uphold because the FBI’s investigation of Clinton was still in progress well into the election season.
Comey would have conferred a big advantage on Trump if he had decided to recommend prosecuting Clinton — a decision that, in my view, would easily have been defensible.
Comey would have conferred a big advantage on Clinton if, having decided against prosecuting her, he had declined to explain the basis of his decision to the American people and to Congress, and then refused to meet his promise to advise Congress if the FBI re-opened its investigation. A refusal to explain would have created the false impression that Clinton had not acted with great carelessness.
By taking a middle course — not prosecuting but being transparent — Comey probably came as close as he could have to not tilting the election in favor of either candidate. This doesn’t mean he acted properly. It does suggest that, if one recognizes the full context of Comey’s actions and the complexity of the situation, they are not really inconsistent with the “don’t help or hurt a candidate” tradition he is accused of violating.
UPDATE: A friend with substantial experience as a prosecutor writes:
Part of the scandal here lies with the Justice Department’s refusal to conduct a grand jury investigation. That fact demonstrates that Ms. Lynch never planned to take the matter seriously. And, without a grand jury, the FBI lacked subpoena power.