Thursday, July 07, 2016

Why Did Comey Decline to Indict?




Reflecting on F.B.I. Director James Comey's remarkable decision to make a compelling case that Secretary Clinton broke the law, on the one hand, and decline to indict her on the other, my brother Scott and I independently came to the same conclusion.  If he had indicted Clinton, it would have made the F.B.I. a kingmaker.  And to become a kingmaker by dint of indicting a presumptive presidential nominee for was, in this instance, not healthy for the republic.

Unsurprisingly, it turns out that we were hardly the only ones to think of this.  Here's an excerpt from an interview aired yesterday between (*gulp*) Rush Limbaugh and former Federal prosecutor Andrew C. McCarthy:
RUSH:  You've had a day -- we've all had a day -- to digest this.  You had your piece at NRO [National Review Online] yesterday that basically shredded the FBI director's claim that he couldn't find any intent here and, as such, no reasonable prosecutor would seek charges or would seek to prosecute the case.  Where are you today after having an overnight to digest this, talk to people about it, and review your own thoughts?

MCCARTHY:  Well, I guess, because I think highly of Jim Comey -- he's been a friend of mine and someone I have a lot of respect for personally for a long time -- I try to find some silver linings in what otherwise is a pretty disappointing outcome. . . .
 
And the only upside I can see to what's happened here is he -- in a very expansive, lavish way -- laid out exactly what the FBI's investigation found so that at least the American people will have that before them when they go to the polls in November.  Now, I should underscore that I don't think that's the FBI's job.  I like the idea that the law enforcement people do law enforcement and leave the politics to the politicians.  But I am grateful for the fact that at least we have a full accounting of what they found.

RUSH:  You know Comey, so in that regard let me ask you: An analogy made here yesterday that others have made also is that this was strikingly similar to the Chief Justice John Roberts saying (summarized), "You know what?  I don't feel comfortable finding a major piece of legislation of the president's that was voted in favor by the people's representatives...  I just don't want... I'm not gonna rule this unconstitutional."  So he changes it from the bench essentially to make it pass muster.  And some people are saying that Comey has, in his own way, done the same thing here, that he just couldn't bring himself to have such a major impact on something as important as a presidential campaign by taking an action that might result in the nominee of one of the major parties being taken out.  Any reaction to that theory?
McCarthy agrees that the theory has merit.  Then:
McCARTHY:  I've never understood this idea that, you know, we have to have the election calendar in mind when we're doing these political corruption cases because we wouldn't want to do anything that would make the FBI responsible for the outcome of the election.  Well, you know, look, if you're in these jobs -- and I've been in these jobs -- you have two choices.  You either indict someone who deserves to be indicted and affect the election that way or you don't indict someone who deserves to be indicted, and you affect the election that way.  One way or the other, you are in the situation where you're affecting the election.  So that ought to be liberating.  We shouldn't be worried at all about how our exercise of discretion affects the politics.  What our job is, is to exercise discretion correctly and let the chips fall where they may.
The point here, of course, is that although McCarthy himself believes that the FBI in this instance could not place itself outside the election process--it would affect the election outcome whether it indicted Secretary Clinton or not, he thinks Comey considered only the first half the dilemma: "You . . . indict someone who deserves to be indicted and affect the election. . . ."

Historians know--or certainly ought to know--that we can rarely discern the motivations of historical actors with certainty.  We're usually in the position of making educated guesses, and we try to make those guesses as educated as we can.  But that Comey decided the FBI should not play the role of kingmaker--or in this instance, queenmaker--is the explanation that is so far the most plausible.

We do not say that we accept Comey's potential reasoning as valid.  As a Republican, Scott is naturally adamant that it isn't.  I, as a Democrat, would like to accept this reasoning but can't.

Civil political discourse and damn-the-torpedoes partisanship cannot mesh.

1 comment:

Scott Grimsley said...

To help explain my position further, I think that Comey acted in a way that he felt was honorable in laying out what to me (Mark and I differ here) a devastating case against Hillary and then not pulling the trigger. The obvious comparison to Justice Roberts bending over backwards with somewhat contorted reasoning to not declare Obamacare unconstitutional.

The reason I disagree with this rationale is two-fold. First, by not indicting, or deciding, the process is still affected, as the article states. It is kind of like Asimov's 3 Laws of Robotics where it states " A robot may not injure a human being or, through inaction, allow a human being to come to harm". What is acknowledged here is that not acting can often have as deterimental an effect as acting.

The second (and more compelling) reason to me is that you do the right thing regardless of season. You cannot say because it's Thursday I will act this way, but if it Sunday I will act another. This inconsistency changes the fundamental notion that justice should be evenhanded, not capricious, and should apply to everyone equally. This I what I really lament about this decision - it confirms the notion of many on the right and the left that equal justice for all is a farce. And without the rule of law, heaven help us.