Campaign 2016

Why Comey Did What He Did

By Jack Goldsmith
Wednesday, July 6, 2016, 5:35 PM

At I speculate about why FBI Director Comey took the unusual step of publicly summarizing the nature and conclusions of the Clinton email investigation, and then announcing the FBI’s recommendation to the Justice Department that Clinton should not be prosecuted.  My main answer: “I believe Comey did what he did because he believed what he said about Clinton’s actions and whether prosecution was warranted, and he thought that announcing these beliefs was the least bad option, in a very tricky context, to protect the integrity of the FBI’s investigation and more broadly to protect the integrity of the Bureau and the Department of Justice.” 

Why didn’t Comey advise the Attorney General in private, as he normally would?  I speculate further:

[Comey] provided an answer in two places. First, he made clear up front that DOJ and the rest of the government “do not know what I am about to say.” And he later said, “In this case, given the importance of the matter, I think unusual transparency is in order.” Comey thought it was necessary, before the more political elements of decision-making kicked in, for him to explain what the FBI found and why it recommended against prosecution.

Imagine if Comey had not made these statements, and had not disclosed his judgments publicly, but instead simply wrote Lynch a memorandum to the same effect as his announcement. Lynch’s independent view on the matter had been called into question by President Obama’s awkward pre-judging of the case, by Bill Clinton’s Tarmac visit, and by her own unclear statements last weekend about her role in the final decision about prosecution. The FBI recommendation would have been less visible, and its independence less obvious, and its judgment even more contested, politically and otherwise, if she received it in private before making her final judgment. And the ultimate judgment not to prosecute would be mired in much thicker political muck than the inevitable muck it is now in.

I imagine that some will say that Comey proclaimed too much independence from prosecutors and effectively pre-judged their case.   But Comey acknowledged that the decision whether to prosecute is ultimately the Attorney General’s to make.   And yet, I conjecture:

Any prosecutor’s hands in this context would have been tied by Comey’s recommendations whether he made them privately or in public. It is inconceivable that the U.S. Attorney and senior DOJ attorneys would recommend prosecution, or that Lynch would ultimately choose to prosecute, after the FBI concluded, even in a non-public memorandum, that doing so was unreasonable.

By conveying the advice publicly and in advance, Comey formally tied DOJ’s hands no more or less than if he had conveyed it privately. He simply took a few extra daggers of responsibility for himself in exchange for attenuating the conflict of interest charges that would have swirled much more violently if he had not publicly announced his views in advance of the Justice Department’s ultimate decision.