THE LEGEND OF JIM COMEY
THE WALL STREET JOURNALThe Legend of Jim Comey
His political actions spared Clinton and protected his own job.
James Comey testifies on Capitol Hill in Washington on July 7. PHOTO: ASSOCIATED PRESSThree days after James Comey’s soliloquy absolving Hillary Clintonof criminal misuse of classified information, the big winner is—James Comey. Washington’s elite are hailing the FBI director as a modern King Solomon for avoiding a political crisis while telling the truth.
Forgive us if we don’t join the beatification. Now that we’ve had more time to digest Mr. Comey’s legal reasoning, and after his appearance on Capitol Hill Thursday, his actions are all the more troubling and set a dangerous precedent. He often poses as the deliverer of “hard truths,” and the hard truth is that he has helped himself politically but not the cause of equal treatment under the law.
Mr. Comey criticized Mrs. Clinton’s “extremely careless” handling of classified materials and found “evidence of potential violations” of the law but then recommended no charges. He conceded that his job is not to decide on criminal prosecutions, but he then contradicted himself by declaring that “no reasonable prosecutor would bring such a case.”
Mr. Comey’s public pronouncement that he would not recommend charges is highly unusual, and not a credit to the FBI. The bureau and its director are not the last word in the U.S. justice system. Their time-honored role is to uncover the facts, build a case, and leave the decision on prosecution to Main Justice.
Law-enforcement officials are also not supposed to talk beyond the “four corners” of an indictment, much less about an ongoing investigations except when disclosing information necessary to protect public safety. Their evidence and theories are meant to be adjudicated in adversarial courts, which is in part why Mr. Comey ought to have presented his findings and recommendation privately.
Regular order was even more important given President Obama’s multiple media interviews in which he effectively exonerated Mrs. Clinton, and Bill Clinton’s meeting with Attorney General Loretta Lynch on an airport tarmac last week. Mr. Comey justified violating Justice Department norms because of “intense public interest.” But if he really believed that such a politically charged case required a public presentation of the facts, then he should have simply presented the facts and not editorialized about the merits.
Doing that, however, would have courted fury among Democrats and their media friends. And if Mrs. Clinton later won the election, Mr. Comey might have had to resign before his 10-year term expires in 2023. Otherwise he’d risk becoming persona non grata as Louis Freeh was under Bill Clinton.
His public presentation had the effect of rescuing Mrs. Clinton from her recklessness. By documenting the damaging evidence but then defining her conduct as merely “extremely careless” instead of the “grossly negligent” test that the law specifies, he also let Ms. Lynch avoid a choice about the law and politics. Note how quickly Ms. Lynch closed the email investigation this week.
The FBI also carved out a process double standard for Mrs. Clinton that was not extended to other high political figures. In a normal case the FBI would have interviewed the entire Clinton ensemble early, including Mrs. Clinton, then scored them for any false statements.
That’s what the FBI did to David Petraeus, and it’s one reason Mr. Comey fought for a felony charge against the former CIA director. The FBI did the same to Scooter Libby. Vice President Dick Cheney’s former chief of staff was indicted for making false statements to the FBI and perjury, though someone else leaked the name of Valerie Plame.
Mr. Comey didn’t interview Mrs. Clinton until three days before he announced his prosecutorial verdict. By then her lawyers surely knew the probe was in a mopping up phase. You can bet at that point Mrs. Clinton didn’t tell the FBI the same lies she told the public for more than a year. But we’ll never see the transcript of that FBI interview, because Mr. Comey’s transparency only goes so far.
The Comey forbearance also seems to run to the matter of mens rea, or “guilty mind,” which he used as a reason not to indict Mrs. Clinton. Mr. Comey told the House on Thursday that “the Justice Department’s practice and judicial practice will impute to any criminal statute” that “you know that you’re involved in criminal activity of some sort. A general mens rea requirement.”
He added that this applies “specifically” to “a negligence-based crime.” But mens rea does not require knowledge of violating a specific statute. It only requires knowing that you are committing a wrongful act. Mrs. Clinton knew she was doing that when she continued to use her private server despite specific warnings from State Department officials that she was putting classified information at risk.
Mr. Comey has done such a masterful job of public relations that Democrats and the media are now claiming that anyone who disagrees with his conclusion is attacking him for “doing his job.” But Mr. Comey didn’t do his job of serving the public good. He protected his job with a dismayingly political performance.
