The Comey conundrum [With Clarification]

I agree with Scott that Andy McCarthy is an invaluable source of informed analysis regarding the Clinton email scandal and the collusion hysteria. There is no one whose analysis has been more helpful to my thinking about these matters.

The column McCarthy published this weekend on James Comey’s role in the Clinton email scandal represents another valuable contribution. I want to make two points about this piece, at least one of which puts me at odds with Andy.

First, McCarthy argues that “the fix was in” at the Justice Department. In other words, DOJ was not going to indict Clinton no matter what.

This is true, I think. The Obama Justice Department was wedded to an interpretation of the Espionage Act under which proof of intent to harm the United States is required to find someone guilty of mishandling classified information. This interpretation was an insuperable obstacle to finding Hillary Clinton guilty, which may well be why President Obama articulated, and the DOJ adopted, it.

However, I doubt that the DOJ’s interpretation differed from James Comey’s interpretation. In other words, I think Comey probably was fully on board with the DOJ’s view of the law and the decision not to prosecute Clinton.

It’s true that now, long after the fact, Comey seems to assign responsibility solely to Justice Department prosecutors. He says things like the evidence against Clinton was “unlikely to get us to a place where they would prosecute at the Justice Department.”

At the time of the decision, though, Comey argued vigorously in favor of the Obama Justice Department’s interpretation of the Espionage Act. He insisted that a contrary theory has never been invoked to prosecute anyone and that Clinton could not be convicted on it. He denied that it was even a close call.

Was all of this for show? Was Comey making arguments he didn’t believe? Possibly. In my view, he’s an operative willing to say almost anything he needs to.

But, as McCarthy points out, in this case Comey didn’t need to say anything. It’s not the job of the FBI director to discuss the law. That being so, it seems unlikely that Comey would, with great fanfare, publicly present a legal analysis to which he did not subscribe. If he disagreed with the DOJ-Obama interpretation of the Espionage Act, he likely would have stayed silent on the subject.

My second point — and here’s where I definitely disagree with McCarthy — is that speaking in detail about the decision not to prosecute Clinton was the right thing to do. It’s true that, as Andy says, ordinarily the government speaks in court, where “a person. . .formally accused of a crime. . .has the full pallet of due-process rights to defend herself.” Unless and until that happens, ordinarily no one is entitled to know what the government thinks about a matter it is investigating or has investigated.

But Hillary’s case was extraordinary. She was running for president of the United States. The email scandal had become an issue in the campaign. The public knew she was under investigation.

Under these circumstances, I believe it was important for the public to hear what Comey said. Had he, or someone else at DOJ, simply announced that Clinton would not be prosecuted, the public would likely have assumed that this was because DOJ concluded there was insufficient evidence that she mishandled classified information.

The public would not have known that she did mishandle such information, but would not be prosecuted because of the quirky, counterintuitive way the Department of Justice chose to interpret the Espionage Act. But this was very valuable information for the public to have.

There is no norm for dealing with cases like Hillary Clinton’s, but there is precedent of sorts. Ken Starr’s team produced a report about its investigations of Bill Clinton. It spoke outside of court about his case.

Robert Mueller’s team, if it decides not to prosecute President Trump, will almost certainly produce a report. That report may well resemble Comey’s statement on Clinton in the sense that it will lay out incriminating facts but go on to explain why, for technical reasons, the case should not be prosecuted.

Hillary Clinton wasn’t the president, but she was going to be the Democratic nominee for president. James Comey wasn’t a special counsel, but the matter he investigated was a perfect example of a case that should be handled by a special counsel, rather than the DOJ, if special counsels weren’t such a bad idea.

Thus, I believe Comey would have done the public a disservice had he simply stated that Clinton wouldn’t be prosecuted or left it for someone else to say only that. It’s possible, therefore, that contrary to what I argued in the first part of this post, Comey, sensing an obligation to discuss the case, fell on his sword and presented a legal analysis to which he did not subscribe.

This would have been a greater disservice than saying nothing. However, I think Comey probably subscribed to the faulty legal analysis he presented in support of a prosecutorial decision he agreed with.

UPDATE: To be clear about Ken Starr’s report, the statute pursuant to which he was appointed required him to write it. No statute required Comey to speak “out of court” about Hillary’s case, and doing so was contrary to normal Justice Department practice.

But there’s good reason for statutory requirement that a prosecutor in Starr’s position write a report. In cases like the one he handled, the public should know what the prosecutor learned, not just that he decided not to prosecute.

The investigation into Hillary Clinton’s handling of official emails is of the kind a special counsel might well handle.

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