In July, in the aftermath of FBI Director James Comey’s wrong-headed decision to go public with the recommendations he was making to prosecutors in the DOJ that there was no plausible basis for prosecution of Hillary Clinton arising out of her email transgressions (and equally wrong-headed decision to opine about matters that went beyond whether prosecution was warranted), I wrote a column for this website identifying broader constitutional lessons to be gleaned from the episode.
Since, as Ronald Reagan would put, “there [he has] go[ne] again,” I offer below some additional constitutional observations that go beyond any effect Comey’s action might have on this particular election. (As an important aside, I must say that open-minded and careful observers would find little “new” in Comey’s October disclosure—even he acknowledges there is not at present any basis to say that any of the newly discovered emails in Anthony Weiner’s computer relate to classified information, let alone any basis to say the newly discovered emails would bear in any way on whether Secretary Clinton committed a crime worthy of prosecution. The newly discovered emails may reinforce the fact that she did not properly secure government-related emails, but is there anyone in the country who doesn’t already know this?)
Lesson #1: Less (Formal Independence) is Sometimes More
Much of the discussion in the past several months about the investigation of the email affair has referred back to the investigations conducted by so-called independent counsels (like Ken Starr) during the Reagan and Bill Clinton administrations. Starr and other independent counsels were appointed pursuant to now-expired parts of the Ethics in Government Act that provided legal insulation for the independent counsels to do their jobs, in particular a provision stating that such independent counsels could not be removed except “for cause.” But one point Ken Starr made publicly toward the end of his run is amply illustrated by the Comey missteps—that investigators who are not legally independent and who can be fired at will often have freer rein than does an independent counsel. At first blush, allowing the target of investigation (or in this case, the target’s close political allies—President Obama and Attorney General Loretta Lynch)—to have the power to remove the investigator (Comey) reeks of self-interest. But, in important ways, Starr is right. Compare Starr to Comey. From the instant Starr took office, he was vulnerable to attack as having been picked by right-wing judges as part of a political plot. Whatever the truth of that criticism, it played well politically.
But that tactic doesn’t work as well against Comey, because he was handpicked by President Obama himself to head the FBI. If Starr, frustrated by White House stonewalling, had quit early on, the public would have called him a quitter. If Comey threatens to quit, he has far more leverage because of the political damage his departure would cause the administration and to the Clinton campaign, in the same way that President Richard M. Nixon’s firing of Archibald G. Cox before there ever was an independent-counsel law placed Nixon under so much pressure that he had to appoint another investigator, Leon A. Jaworski.
Indeed, likely the primary reason Mr. Comey was not formally instructed by his boss in the DOJ (the Attorney General) not to violate the clear DOJ policy that forbids commenting on pending investigations—reports are that Ms. Lynch made clear her desire that Comey comply with rather than disregard settled policy but did not directly order him to refrain from speaking—is that such an order by Lynch, while completely legally appropriate, would have looked bad politically. The same political optics are likely the only thing that saves Comey from being fired, by the AG or the President, for going ahead and running afoul of DOJ policy and interfering (before he even knew what information the Bureau really has) with a presidential election.
Lesson #2: Real World Independence Ought Not to Obscure the Fact that the FBI Director is Not Supposed to Operate Outside of DOJ Bounds
As I wrote in July, perhaps the most vexing aspect of these rogue actions by Comey is that they obscure who—as a legal, constitutional matter—has decision-making authority over federal prosecution. The media acts as if the FBI is separate, rather than a part of, the DOJ. (A headline from CNN today screamed “FBI Clashes with DOJ Over Clinton Probes,” as if the two entities were distinct.) But the mistake is not merely thinking that the FBI is independent from the rest of DOJ and its head, the attorney general. The ultimate power to prosecute or not does not rest with the FBI, or the “career prosecutors” in the DOJ that critics of Mr. Comey often say should have been consulted by him before he spoke, 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.
The power of the president here is especially important given the statements Donald Trump has made on the campaign trail about wanting to prosecute Ms. Clinton if he wins. I stand behind what I wrote last month:
Of course, if [Trump] making the threat is damaging, carrying it out would be worse. The fallout if Trump actually were to prosecute Clinton could make the last days of this presidential election, which look so dark and ominous now, seem sunny. For this reason, if Trump wins, President Obama might consider employing another presidential power relating to criminal prosecution—the power to pardon. And since Trump himself is likely to have already done things in his business career [including regarding his taxes] that someone might want to threaten to indict him for in the future after he left office, perhaps the best course would be for President Obama to pardon both Clinton and Trump. In addition to eliminating the possibility of a divisive prosecution, such a bipartisan gesture would appear more legitimate and might even begin to repair what this ugly campaign has broken.
Short of a pardon after the election (issuing one before that would be fraught with political consequences), is there anything President Obama could do (or could have done) to correct Mr. Comey’s mistakes without causing undue political damage? Perhaps. I hope that the president at least considered taking charge of his own DOJ right after Comey’s October announcement. He could have suspended Comey for violating DOJ policy, but at the same time taken steps to make sure everyone knew he wasn’t sweeping any Clinton prosecution-worthy illegality under the rug. He could have directed DOJ to put however many people it takes to review every Clinton-related email found in Weiner’s device at least once, and then forward him in three days the 100 most relevant emails. He then could have briefed the American public on whether these emails add anything to the investigation into Clinton, or instead are simply more of the same stuff we’ve all already heard about.
Lesson #3: DOJ Tradition About Not Commenting on Investigations is Not Just Wise Policy; It has Constitutional Underpinnings
As noted above, many have documented how Mr. Comey’s July and October surprises are in tension with clear DOJ precedents and policies. But the debate ought not to be just about internal, bureaucratic regulatory limitations. The reasons DOJ is not supposed to comment publicly on pending investigations sound in the Constitution itself. As one insightful Comey critic has observed, 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, implicating due process rights.
And when the comments come so close to an election, another important constitutional limit—that government machinery ought not be used to influence the outcome of partisan contests—is also implicated. Comey was not speaking for himself as an individual politician or person; he was speaking for the FBI. And government is not supposed to speak on partisan election matters. That is why government money cannot be used to run election ads, even though government is free use ads to speak out—against smoking, for example—in many other ways.
It was bad enough for Mr. Comey to wrongfully comment in July. (If he had kept quiet, the American public would have drawn its own conclusion that no indictment of Ms. Clinton was forthcoming, so his statement was not necessary in any meaningful way.) But it is worse still for him to comment again (and, as noted above, before he even knows much about what he’s commenting on) so close to the election. This is a clear instance in which two constitutional wrongs do not make a right.
The biggest legal and ethical lapse in modern American government occurred in the early 1970s under President Richard Nixon. Nixon’s biggest misdeeds were that he used the machinery of government as a weapon against his political enemies. I’m not remotely suggesting the Mr. Comey was motivated in his actions by political hostility towards Ms. Clinton (so much as an inflated sense of his own role in government and his unhealthy desire to preserve his own image rather than serve his employer), but rules like DOJ’s limitations on public comments leading into an election exist precisely to avoid partisan manipulations and, importantly, the appearance of them. Can you imagine how inappropriate it would be for the IRS to publicly disclose last week that the audit on Mr. Trump’s tax return is complete (such that his public reasons for not making available his returns no longer apply)? And an IRS audit bears many similarities to a DOJ investigation (and can ultimately trigger a criminal probe).