The Unindicted

By now you’ve all undoubtedly heard about FBI Director James Comey’s remarkable statement of his decision not to seek an indictment of Hillary Clinton on charges related to the private email server on which she used for all of her work-related email during her tenure as Secretary of State. The editors of the Wall Street Journal did a pretty fair job of expressing my views:

By a reasonable person’s standards, Mrs. Clinton’s decision to use a private server, to give her aides access to it, to email classified information on it, to fail to secure it, and to use it in hostile territory was grossly negligent. We can’t wait for the next minion prosecuted for mishandling secrets to invoke the “extremely careless” defense.

Mr. Comey justified what he called his “unusual statement” in the name of political “transparency.” But by declaring that no prosecutor should indict Mrs. Clinton, he also hurt the cause of political accountability. The decision to indict or not rests with prosecutors, not the FBI, as Mr. Comey noted. But now prosecutors can merely point to Mr. Comey’s public statement to justify taking no action. He could have passed on his evidence quietly, but instead he acted like a prosecutor while denying that he is one.

It is true that prosecutors must consider the context when deciding whether to press charges. But we wonder if Mr. Comey and the FBI would have shown the same forbearance had the target of their probe been someone less prominent or loved by the Washington establishment. Mr. Comey’s bosom friend, Patrick Fitzgerald, the special prosecutor he named to pursue Scooter Libby, showed no such restraint.

Most distressing is what this episode augurs for another Clinton Administration. Mrs. Clinton deliberately sought to evade the Federal Records Act, recklessly flouted laws on handling classified information, spent a year lying about it, and will now have escaped accountability. This will confirm the Clinton family habit, learned so painfully in the 1990s, that they can get away with anything if they deny it long enough and are protected by a friendly media and political class.

The rule of law requires its neutral application. We almost wish Mr. Comey had avoided his self-justifying, have-it-both-ways statement and said bluntly that he couldn’t indict Mrs. Clinton because the country must be spared a Donald Trump Presidency. It would have been more honest and less corrosive to democracy than his Clinton Standard.

Rather than ruminating over what the decision means, I’ll list some things that it doesn’t mean.

1. It did not exonerate Hillary Clinton.
2. The opinion of the editors of the New York Times notwithstanding, it did not provide “legal clarity” to the matter. That could only be done through a court of law. In the absence of an indictment and adjudication, charges could be brought at any time, at least until whatever applicable statutes of limitations run out.
3. It did not place Hillary Clinton’s guilt or innocence beyond reasonable doubt, as Dana Milbank seems to think. Quite to the contrary, Director Comey ably outlined why a reasonable person would think that Sec. Clinton had done something illegal, as poll after poll has suggested a majority of Americans do.
4. Director Comey did not make an impartial judgment based on the facts, as his own statement clearly shows. He made a political judgment, electing to appear impartial and not take sides rather than sticking with the facts wherever they led.
5. It did not close the matter of Hillary Clinton’s email server. There will be leaks of information, some from the FBI, some from hackers, some from foreign governments. Quite to the contrary, his statement insured that there will continue to be eruptions on the matter straight through to the November elections and, possibly, beyond.

What Director Comey’s statement did is ensure that Hillary Clinton will be the Democratic Party’s nominee for the presidency.