July 7, 2016

Two Takes on Comey

FBI Director James Comey's public chastisement of Hillary Clinton has struck a nerve with any number of people: House Republicans, who can't seem to get out of their own way; Donald Trump, when anyone can actually get him to focus on something that doesn't have anything to do with his own name; Clinton supporters, who are relieved privately and showing a confident face publicly, and regular folk like me and some of you, who are just scratching our heads about this whole thing, mouths full of bile, even without picking sides. 

It's also exposed a whole nother aspect of  'Servergate' or 'EmailGate' or 'LyingSackofGate' or whatever the heck 'gate' you want to call it.  Take a look at these two opinions, which couldn't be farther apart:
(1) When FBI Director James B. Comey stepped to the lectern to deliver his remarks about Hillary Clinton on Tuesday, he violated time-honored Justice Department practises for how such matters are to be handled, set a dangerous precedent for future investigations and committed a gross abuse of his own power
(2) Law enforcement officials tend to inhabit a universe that is both binary and terse: prosecute or don't prosecute. Let the facts in the indictment speak for themselves. No further comment. 
So the  remarks by FBI Director James B. Comey accompanying his announcement that he would not recommend bringing charges against former secretary of state Hillary Clinton were, as he acknowledged, "unusual."  Indeed, that word scarcely captures what happened. Comey's comments were extraordinary, important and, on balance, justifiable departure from normal practise. Clinton may not be better off for them, but the country is. 
What do you think? The first one from MSNBC, the second from Fox News? 

Actually, both of those are excerpts from columns in the Washington Post. The first was written by Matthew Miller, who was director of the Justice Department's Office of Public Affairs from 2009 to 2011.  The second was written by Ruth Marcus, who has been with the WaPo since the 1980s. 

Clearly, they have different opinions of what Comey did, even as they focus on the same actions or comments to make their point.

Here's Miller:
... his willingness to reprimand publicly a figure against whom he believes there is no basis for criminal charges should trouble anyone who believes in the rule of law and fundamental principles of fairness. Justice Department rules set clear guidelines for when it is appropriate for the government to comment about individuals involved in an ongoing investigation, which this matter was until prosecutors closed it Wednesday.
He also notes that Comey ignored the rules on when to talk
to editorialize about what he called carelessness by Clinton and her aides in handling classified information, a statement not grounded in any position in law.  He recklessly speculated that Clinton's email system could have been hacked, even while admitting he had no evidence that it was.
In several instances, Comey made assertions that are outside the authority of the FBI. He inserted himself into a long-standing bureaucratic battle between the State Department and the FBI and intelligence agencies, making claims about classification systems at the State Department that do not fall under his jurisdiction. He raised the possibility of administrative sanctions that could be taken, another decision that is not his to make...
He also substituted his judgment for that of prosecutors. Career prosecutors at Justice have been working hand in hand with FBI agents on the case, even joining the interview with Clinton. While it is hard to imagine they would have reached a different conclusion about the appropriateness of charges, they deserved the ability to make that decision privately, in consultation with the FBI, rather than to hear the agency's recommendation at the same time the public did.
And Marcus, on the "extraordinary" nature of Comey's comments:
That he made the statement at all, given that charging decisions are left to the prosecutors, without an interim assessment by investigators - even the FBI director himself - preemptively asserting that "no reasonable prosecutor would bring such a case."
That he provided a synopsis of both the facts of the case and the legal analysis underlying his no-go conclusion... 
And that he engaged in extensive editorializing: Clinton and her colleagues "were extremely careless in their handling of very sensitive, highly classified information."... He said that "any reasonable person in Secretary Clinton's position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation."
There's more. Comey took a barely disguised slap at President Obama, noting that "there were many opinions expressed by people who were not part of the investigation - including people in government - but none of that mattered to us." 
The conclusions reached by the writers also vary; Miller was not fond of the press conference:
While Clinton shouldn't have received special treatment, she does not deserve worse treatment from her government than anyone else, either. Yet by inserting himself into the middle of a political campaign and making unprecedented public assertions, that is exactly what Comey provided.
The entire exercise seemed designed to protect Comey's reputation for integrity, while not actually demonstrating integrity.  Real integrity is making a decision, conveying it in the ordinary channels, and then taking whatever heat comes. Generations of prosecutors have learned to make the right call without holding a self-congratulatory news conference to talk about it. Comey just taught them a different lesson.
Marcus, on the other hand, seems a fan:
Comey proved his independence during the George W. Bush administration when, as deputy attorney general, he headed off White House officials' efforts to persuade John Ashcroft to reauthorize a domestic surveillance program while the then-attorney general was recovering from surgery in a hospital intensive-care unit. On Tuesday morning, Comey proved the point again. He is no team player, which in this setting is no criticism - it is a high compliment. 
My sense?  At the very least, we should consider thinking about these two perspectives.

We may end up in familiar territory - just as divided as we seem to be on what the appropriate outcome should have been - but hopefully we can at least think about what the justice system should look like, and on the acceptable roles for investigators and prosecutors.