MONTEREY — James Comey's announcement that the FBI was not recommending criminal prosecution of Hillary Clinton has generated predictable applause and criticism. But, the focus has remained solely on the substance of Comey's announcement and not on how he did it.
What Comey did was highly unusual in three respects. The first was correct, under the circumstances. The second was incorrect, but a decision that was at least arguably reasonable. The third was not only incorrect but inappropriate and troubling.
I am an admirer of James Comey. I greatly respect his track record of independence and professionalism. Indeed, it is because he appreciates the important but limited institutional role of the FBI that I find his comments so remarkable. Second, I intend to vote for Hillary Clinton over Donald Trump. Still, I find her decision to rely on a private email system to be bone headed and incomprehensible. However, neither my respect for Comey nor my political support for Clinton has any bearing on my comments below.
1. The FBI publicly announced its recommendation. It is the Department of Justice, not the FBI, that decides whether to prosecute a case in the federal system. Unlike some states, the rules in the federal system are clear cut and well established. Moreover, the investigative agency — whether it is the FBI, DEA, ICE or any other agency — does not publicly announce its view of the evidence before a prosecution decision is made and, if a decision is made to not prosecute, not at all. This allows for a sometimes robust and healthy discussion between DOJ and the investigators, without any concern for public posturing. It also leads to greater respect and credibility for the criminal justice system.
Here, I see good reason to vary from the norm. This is a very unusual situation and one where the decision to be made by DOJ was already being questioned by some as politically motivated. And, the Attorney General had announced that she would rely on the recommendation of the FBI in making the ultimate decision. I would have much preferred a joint DOJ/FBI announcement but I can appreciate Comey's decision to go it alone.
2. The detailed facts in Comey's statement. It is customary when an indictment is announced or an arrest made that the federal authorities detail the facts. This provides notice to the defendant and affords the public the necessary insight into how and why the charges were brought. While sometimes this goes too far and runs the risk of tainting the jury pool, there is sound public policy reasons for this practice.
No day in court
Furthermore, such charges can also at times be accompanied by more general statements that — at least in theory-are designed to educate the public and serve as a deterrent (e.g. "This case is an example of corporate greed and we intend to crack down" or "The defendant took advantage of lax oversight by the government agency."). But, laying out some facts, to say nothing of the level of detail in Comey's statement, is what happens when a person is charged. Not when there are no criminal charges brought.
Think about it. When you are charged, you can have your day in court. But, it is a very slippery slope when the government (here the FBI) says: "We don't believe you have committed a crime but here are all the bad things we think you did." I don't hear any conservatives who rail against the power of government to be complaining about this. But, they should.
To be sure, a desire for increased transparency, particularly in this rather unique public case, no doubt lead Comey to let it all hang out. Presumably, he believes that the public has a right to know the facts and let them decide. I understand the logic and the impulse, but I disagree. And, to the extent that he thought that his recitation of facts would end the push by some for even more facts and background information, he was wrong.
3. Comey's comments about Clinton's conduct. If Comey had left it at a fulsome disclosure of the facts found in the investigation, I might have chalked it up to a "rough justice" path to a difficult situation, wanting to make the right decision but give the public confidence in his recommendation. But, he went well beyond that and ventured into unprecedented and dangerous waters. Comey offered his personal opinion that Clinton's actions were "extremely careless" and talked about possible intrusions by "hostile actors" even if there was no evidence to that effect.
I find his comments well beyond the proper role of the FBI. It is one thing to talk generally about an issue ("We need to make our computers more secure and pay more attention to hacking"), but to do so in the context of a case against an individual not charged is remarkable. The public's right to know does not extend, under any circumstances, this far.
Donald K. Stern is a former United States Attorney for the District of Massachusetts. He is a part-time resident of Monterey.