I wanted to offer just a few additional thoughts on the FBI recommendation against prosecuting Hillary Clinton, now that the dust has settled after a surreal day in American politics. There were already calls (see Politico here) for FBI Director James Comey to testify before Congress on this matter, and he has agreed to appear later this week. I think that could be a useful and revealing exercise if done properly, though I also think it could – as congressional hearings often do – devolve into a frustrating day of mindless finger-wagging and grandstanding that entirely misses the point and serves no ultimate purpose other than to waste the time of people with more important things to do. I also think there is danger to the separation of powers in asking the DOJ to reveal its deliberative processes as to charging decisions (though that’s a more complicated claim in an exceptional case like this, where law enforcement makes such a comprehensive public announcement of its thinking).
First, Republicans have been – rightly, I believe – focused on the FBI Director’s failure to offer a more persuasive explanation as to his conclusion that no reasonable prosecutor would have charged Clinton, even under Section 793(f) (for gross negligence in mishandling classified information). I, too, am troubled by the Director’s explanation, such as it was. That is not to say that his ultimate conclusion – or that a federal prosecutor’s ultimate conclusion to that same effect – is not sensible or justifiable. It is to say, however, that his conclusory statement about the “reasonable prosecutor” seems inconsistent with the facts that he enumerated about this investigation. As I said yesterday, I would like to know more about this contention. It may very well be that even a reasonable prosecutor would not seek an indictment under these circumstances – but that is very different from saying that no reasonable prosecutor would seek an indictment under these circumstances.
Second, there has been some attention given to other cases involving the mishandling of classified materials, most notably the Petraeus and Nishimura cases. I’m not sure that it is enough to say that there have been other similar cases in which a person was prosecuted (Comey attempted to distinguish the Clinton case, though his attempt to do so seemed unpersuasive, at least as a reason for concluding that no reasonable prosecutor would seek an indictment here). Rather, I would be interested in hearing about other similar cases that the DOJ investigated that did not result in a prosecution. Of course, that information is likely harder to get. But if Comey can show that similar kinds of cases have been investigated but not prosecuted, I think that would bolster his credibility on the Clinton case. Examples that come to mind involve folks like Alberto Gonzales and John O’Neill and Martin Indyk (see Politico’s piece on previous cases here).
Third, yes, I think, the current DOJ will decline to prosecute. But, so long as Clinton remains legally eligible for indictment, there is nothing to stop the DOJ from taking up her case later, Comey’s announcement yesterday notwithstanding. Obviously, I am thinking of something very specific: the voters elect steak and water peddler Donald Trump as President; he installs a new Attorney General; and directs his DOJ to seek an indictment. He has previously said that he would seek to prosecute her, and I have posted previously on whether this is something that he could do as President (it’s an interesting question of presidential power). Trump has also said that he would base his selection of Supreme Court justices on whether they would investigate Clinton’s emails – once again demonstrating that Trump has absolutely no idea of how American government functions or of what the Supreme Court’s constitutional role is. Of course, this all has the unseemly ring of prosecuting your political enemies for sport, simply because you can. And whether there would be a revolt among line prosecutors on this matter is an open question. But it is certainly possible to imagine a President Trump who would see a Clinton prosecution as an enforcement priority.
Finally, I continue to think that Trump’s claim of the “rigged system” is dramatically overstated and self-contradictory. Comey’s announcement yesterday was as devastating as it could have been in the absence of a recommendation to prosecute. Clinton will have to spend week after week explaining away Comey’s findings. Her prior statements on these issues will be played over and over again, and juxtaposed with video of Comey’s statements refuting her. This hardly seems like the work of a law enforcement official rigging a system in her favor, determined to spare her any harm. Comey, it appears, swept nothing under the rug. No system rigged in favor of Clinton would produce such a scathing set of findings and announce them publicly for all the world to hear. Moreover, Trump has already started using the Comey video and quotes in attacking Clinton (as always, refer to Twitter). Surely Trump cannot claim that Comey is part of a rigged system while, at the same time, using Comey’s own words as evidence of Clinton’s unfitness for the presidency. Trump is trying to have it both ways – hate the system, but use it to your advantage politically; the system is rigged, he says, but the very same system also publicly proved Clinton’s wrongdoing.
So Clinton will be damaged by this. She has mostly been on defense against Trump, or simply waiting for the next Trump gaffe (which, let’s face it, seems inevitable). But that strategy will only take her so far. She needs to get on offense if she is to prevail. That means the Trump oppo file will have to become more prominent than it has been so far in her campaign. Trump versus Clinton is about to get much, much nastier. Nice work, voters. This is what you asked for. (Wouldn’t it have been so much easier to just make John Kasich the Republican nominee, ditch the ugly circus, and start planning the Kasich Administration?)