Three Important Constitutional Lessons to Take From FBI Director Comey’s Statements About Hillary Clinton’s Email Management

Several commenters have criticized FBI Director James Comey’s remarks about Hillary Clinton’s management of classified emails that Comey made during his announcement that he was recommending that no federal criminal charges be brought against the former secretary of state and presumptive Democratic presidential nominee. Former Justice Department official Matthew Miller argued that Comey’s remarks violated clear Department of Justice (DOJ) guidelines for comment on ongoing investigations (which this one was until Attorney General Lynch announced no charges would be filed), and that the remarks “set a dangerous precedent” usurping the power of “career prosecutors at Justice [who] have been working hand in hand with FBI agents on the case . . . and who deserved the ability to make [the prosecutorial] decision privately.” He also worried that Comey’s comments open the door to the Department “besmirch[ing] someone’s reputation by lobbing accusations publicly” even though those accusations won’t be put to the test of a criminal trial. Former federal prosecutor Nick Akerman added that “[t]he job of the FBI is simply to investigate, find the facts, and then send them on to the prosecutors and DOJ. . . The prosecutor doesn’t have to abide by [any] recommendation [the FBI makes about the wisdom or fairness of prosecution.]”

I agree with a good bit of this critique, but I think the lessons we should draw from the Comey/Clinton episode go well beyond internal DOJ-FBI relationships and policies, and even beyond the due process owed to people under investigation. In the space below, I try to nest the recent and unusual chapter in a larger constitutional context to make three points about the key roles of different institutional actors.

It’s the President, Stupid . . .

One of the frustrating things about the Comey affair (including the criticism of Mr. Comey) is that it has tended to obscure who—as a legal, constitutional matter—has decision-making authority over federal prosecution. The power to prosecute or not does not rest with the FBI, or the “career prosecutors” in the DOJ Mr. Miller mentions and Mr. Akerman adverts to, or even the attorney general of the United States. It rests with the president and the president only. He is the one in whom Article II of the Constitution vests “the executive authority” (of which criminal prosecution is a key component). He is the one the Constitution charges to “take care that the laws be faithfully executed.” He is the one who can render moot any pending or future federal prosecutions (even prior to indictment—more on that later) by pardoning individuals. And he is also the one who can declassify documents (in a world of overclassification that tends to sweep in things already in the public domain), essentially rendering innocent conduct that may before have been criminal. He controls both classification and criminal prosecution, the two powers central to the Clinton email incident.

Over the past few weeks, it would have been easy to lose sight of these constitutional facts, given how people in the media, some members of Congress and others talked about how Comey, the FBI, other people in DOJ, and the attorney general were going to proceed. These folks had decisions to make, to be sure, but those decisions ultimately were decisions about what suggestions to make within the executive branch, whose ultimate arbiter is the president himself.

Of course presidents often do, for political and efficiency reasons, like to distance themselves from many prosecutorial decisions, and they may even send the public message that they are going to defer to the recommendations of underlings. But all that is in the realm of the political and the prudential, not the legal or the constitutional. According the supreme law of the land, the decision whether to proceed criminally—and the decision whether and when to defer to underlings at all—is one the Constitution commits to the president.

When we forget that there is only one federal Prosecutor-in-Chief, we get into problems. Congress and the Supreme Court forgot this key principle in passing and upholding, respectively, the constitutional abomination known as the Independent Counsel Act—remember Lawrence Walsh investigating Iran-Contra and Ken Starr investigating Bill Clinton and Monica Lewinsky?. I hope we have learned our constitutional lesson with regard to that failed separation-of-powers Frankenstein.

And the justices seemed not to fully appreciate the nature of presidential power in the famous Nixon Tapes case, which reached the right result (in requiring President Nixon to turn over Oval Office tapes), but in which a unanimous Court said odd and troubling things about the relationship between Richard Nixon and lower-level executive actors.

More Than One Way to Skin a Ca(binet Member) . . .

Saying that President Obama (and not Loretta Lynch, much less James Comey) is ultimately legally in charge of the decision whether or not to prosecute his own former secretary of state and political ally Hillary Clinton might cause some cynics and critics to question the wisdom of the constitutional design as I describe it. But we must remember that criminal prosecution is not the only procedural game in town. If Republican leaders like Speaker Paul Ryan really believe that Ms. Clinton is receiving preferential treatment in being spared criminal prosecution, and that she is (as he has publicly alleged) operating “above the law,” he and his Republican majority in the House of Representatives are fully capable of impeaching her and prosecuting her in the (Republican-controlled) Senate. And he doesn’t need the FBI’s files (for which he has asked) to do it; the House has subpoena and other investigatory powers to make meaningful its impeachment authority. (The House could, if it feels all of what has been happening is extra-legal, also impeach Comey, Lynch, and Obama.)

Some readers may assume that because Ms. Clinton is not currently the “President, Vice President [or another] civil Officer[] of the United States” (the group of persons Article II of the Constitution says can be removed from office upon impeachment and conviction of “high crimes and misdemeanors”), the impeachment process is inapplicable. But historical precedent suggests otherwise. William Belknap, who was President Ulysses S. Grant’s secretary of war, was impeached by the House shortly after he resigned his post (and after the House had been notified of his resignation.) The Senate then took up the question whether someone who had already left federal office was subject to the House and Senate impeachment process. After a lengthy debate over constitutional text, structure, and history, a Senate majority decided it did indeed have jurisdiction to hear Belknap’s impeachment case. Logic supports the Senate’s position—otherwise a misbehaving official could escape impeachment consequences by leaving office when the writing is on the wall or may ultimately be on the horizon.

Notice that while the results of Senate conviction in an impeachment proceeding do not include jail time (as a federal criminal prosecution might), they can include “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” a category that includes the office of president.

If the House does not pursue this route, one might wonder whether House leaders believe they could make their case to the jury that really matters, the American people.

Pardon My Fr(iend) . . .

As just mentioned, conviction in the Senate cannot by itself result in jail time, but impeachment does not foreclose subsequent criminal prosecution. And Paul Ryan is not the only Republican leader who has suggested he thinks Ms. Clinton should be prosecuted. Donald Trump regularly says she should be in jail. And if he became president next year, Mr. Trump might (depending on statutes of limitation) be able to initiate federal criminal proceedings against Ms. Clinton. (Just as President Obama has prosecutorial power and discretion, so would his successor, whoever s/he might be.) But could we really see the spectacle of one presidential candidate trying, after the election, to put the other behind bars? It’s hard to rule anything out these days, especially as many Republicans increasingly try to characterize Democratic opponents not just as misguided or evil, but crooked and criminal. (President Obama resisted the criminalization of politics when he decided—despite pressure from some on the Left—not to prosecute members of George W. Bush’s administration who were responsible for arguably illegal interrogation techniques.)

All of this brings us back to a presidential power relating to criminal prosecution adverted to above—the power to pardon. If Donald Trump does indeed win the presidential election, perhaps President Obama will consider pardoning Ms. Clinton before he leaves office (just as President Ford pardoned President Nixon, and President George H.W. Bush pardoned Secretary of Defense Caspar Weinberger, to name but a few high-profile pardons, the former of which was issued before any charges had been filed.) Indeed, because the Constitution, properly read, prevents a president from pardoning himself or herself, Ms. Clinton could be a prosecutorial target even if she were to win in 2016 and lose to Trump in a rematch four years later (again, assuming no statute of limitation problems). So the idea of President Obama pardoning Clinton while he still has the power is not entirely fanciful.