If you’re tired of the usual voices lamenting or championing the Clinton email incident, Jack Goldsmith and Benjamin Wittes of Lawfare offer an extended analysis of FBI Director Comey’s actions from the perspective of professionals working in the national security arena.
5) Why did [Comey publicly announce his recommendation], and was he justified in doing it?
Comey answered this question in part in his press conference. He stated at the outset that Justice Department and the rest of the government “do not know what I am about to say.” And he later explained: “In this case, given the importance of the matter, I think unusual transparency is in order.”
There were surely other reasons for Comey’s “unusual transparency” that he did not mention. Primarily, the public perceptions that the independent judgment of Comey’s superiors, the President and the Attorney General, was tainted on the matter.
In October 2015, President Obama stated that Clinton’s personal email server “is not a situation in which America’s national security was endangered,” and the following April, a few months before Comey’s press conference, Obama said of the Clinton email controversy that Clinton “would never intentionally put America in any kind of jeopardy.” Both of these statements gave the appearance to many observers that the President had prejudged legally relevant aspects of the investigation. And, of course, Clinton is also the nominee of the President’s own party.
To make matters worse, Attorney General Lynch was compromised not just by these statements by the President, but much more so by Bill Clinton’s controversial private visit on her airplane on the Phoenix tarmac; by the Clinton camp floating the possibility, a few weeks before Comey’s press conference, that she would consider keeping Lynch as her Attorney General; and by Lynch’s own unclear statements the weekend before Comey’s press conference about her role in the final decision to prosecute.
In short, Comey’s superiors were compromised in a fashion that threatened to taint the investigative conclusions, including his independent recommendation not to prosecute. This taint around the Clinton investigation was the original set of factors that hemmed Comey in from the beginning.
In this highly unusual circumstance—a circumstance made more unusual by the fact that the central focus of the investigation was the Democratic nominee for the presidency—we believe Comey was justified in announcing his recommendation and reasons for non-prosecution in public. Comey’s unusual action was the least bad option he had for preserving the integrity and independence of his investigation and recommendation.
In other words, if you want a black & white judgment on Comey, Clinton, or for that matter, Trump – you won’t get it in this article. But you will get an up close and personal view of Comey’s actions and why his hand may have been forced. But they do make the following important remark:
… if there is more that Comey can say, he should probably do so—even at the risk of sliding further down the slippery slope he is on. Specifically, assuming the following statements are true, it would be worth Comey’s saying them publicly:
- The FBI has come into possession of a large trove of additional emails that have to be reviewed. To say that something has to be reviewed does not mean it contains anything implicating anyone of anything. It means only that the material has to be reviewed.
- As I stated in my original letter, the reason I sent the letter was to inform Congress of a development that required me to revise my statement to Congress about the investigation’s being complete.
- Nobody should draw any conclusions about anyone’s conduct based on the fact that the FBI is reviewing these emails.
- Nobody should draw the conclusion that anyone sent or received additional classified material or that any material undermines the FBI’s prior investigative conclusions based on the fact that the FBI is reviewing these emails.
- The fact that the FBI is reviewing new emails means only that the FBI is reviewing new emails, nothing more.
Unfortunately, at this point in time it would be well for the FBI to reach a speedy conclusion.
