Jack Goldsmith: Comey’s Announcement Signals Max FBI Independence

On Tuesday FBI Director Jim Comey stated that Hillary Clinton and her State Department colleagues were “extremely careless in their handling of very sensitive, highly classified information,” but concluded that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

It is highly unusual for the FBI Director to publicly summarize the nature and conclusions of a major investigation, and then announce the FBI’s recommendation to the Justice Department that the focus of the investigation should not be prosecuted.

So why did Comey do it?

Certainly not to please Republicans or conservatives, almost all of whom are furious at him for detailing Clinton’s bad acts but not recommending prosecution. Nor was Comey likely motivated to influence the election—among many reasons, it is not obvious which way his announcement will cut in terms of the November vote. (I worked closely with Comey at the Justice Department in 2003-2004.)

Comey also did not choose his course of action to curry favor with the probable future President he will work under, or members of her party. As many have noted, Comey “systematically dismantled Hillary Clinton’s email defense,” and left a “heavy political cloud” over her. Moreover, not enough attention has been paid to Comey’s statement that “in similar circumstances” to Clinton’s, “individuals are often subject to security or administrative sanctions.” Comey was noting here that Clinton’s offenses typically warrant disqualification to receive classified information and demotion if not firing—a devastating judgment about a probable future president. Comey easily could have avoided a public skewering of Clinton by making his recommendation quietly to Attorney General Loretta Lynch. But he instead chose the route that will maximize friction with Clinton should she become President.

Comey did take some heat off of Lynch. But while the integrity of the Justice Department and the FBI was clearly a part of what motivated Comey, I doubt that he was moved to take his unusual actions to protect his boss across Pennsylvania Avenue.

I believe Comey did what he did because he believed what he said about Clinton’s actions and whether prosecution was warranted, and he thought that announcing these beliefs was the least bad option, in a very tricky context, to protect the integrity of the FBI’s investigation and more broadly to protect the integrity of the Bureau and the Department of Justice.

Comey’s first decision was whether the evidence supported prosecution. As he noted, “prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect,” but the FBI “frequently make[s] recommendations and engage[s] in productive conversations with prosecutors about what resolution may be appropriate, given the evidence.” So it is not unusual for the FBI to reach a conclusion, and make a recommendation, about whether someone should be prosecuted.

Why did Comey recommend, despite Clinton’s transgressions, that Clinton did not warrant prosecution? He acknowledged that “there is evidence of potential violations of the statutes regarding the handling of classified information.” But evidence of potential violations of law does not always, or even usually, warrant prosecution. Context matters enormously (and is also why such decisions are often so controversial, since context is fluid and many people take different views on different contextual factors). Comey rested his recommendation about prosecution on the “number of factors” that prosecutors “weigh … before bringing charges.” He said that the factors cutting against prosecution included “the strength of the evidence, especially regarding intent,” as well “the context of a person’s actions, and how similar situations have been handled in the past.

Some argue that prosecution was warranted because not all of the relevant laws require intent (an important potentially applicable one, 18 USC 793(f), requires only “gross negligence”), and because the government needs to send a strong signal to protect the integrity of the classified information system. I do not view this as an unreasonable position, at least based on the information Comey provided yesterday. On the other hand, there are many hurdles to a successful prosecution even assuming the “gross negligence” standard is the right one here.

The prosecution would be entirely novel, and would turn in part on very tricky questions about how email exchanges fit into language written with physical removal of classified information in mind. Though he did not say so explicitly, Comey might have concluded that a conviction in this context was, for many reasons, unlikely—a clear reason not to prosecute. He probably also considered broader public policy considerations that prosecutors often take into account—considerations that cut in many different directions, to be sure. It’s unclear whether Comey was right to say that “no reasonable prosecutor” would bring a case against Clinton—it is just hard to say, one way or another, based on the information he provided yesterday. But Comey explained the general basis for his decision and took full responsibility for it.

Why didn’t Comey advise the Attorney General in private, as he normally would? He provided an answer in two places. First, he made clear up front that DOJ and the rest of the government “do not know what I am about to say.” And he later said, “In this case, given the importance of the matter, I think unusual transparency is in order.” Comey thought it was necessary, before the more political elements of decision-making kicked in, for him to explain what the FBI found and why it recommended against prosecution.

Imagine if Comey had not made these statements, and had not disclosed his judgments publicly, but instead simply wrote Lynch a memorandum to the same effect as his announcement. Lynch’s independent view on the matter had been called into question by President Obama’s awkward pre-judging of the case, by Bill Clinton’s Tarmac visit, and by her own unclear statements last weekend about her role in the final decision about prosecution. The FBI recommendation would have been less visible, and its independence less obvious, and its judgment even more contested, politically and otherwise, if she received it in private before making her final judgment. And the ultimate judgment not to prosecute would be mired in much thicker political muck than the inevitable muck it is now in.

By making his final recommendations known to the public before telling the Attorney General, and by issuing a devastating critique of Clinton’s behavior even as he was recommending non-prosecution, Comey sent a signal of maximum FBI independence that at the same time lessened the sting of the many potential conflicts of interest lurking outside the FBI even as it placed much more responsibility (and criticism) for the decision on him.

Some will say that Comey proclaimed too much independence from prosecutors and effectively pre-judged their case. After all, the decision whether to prosecute is the prosecutor’s, and ultimately the Attorney General’s, to make. Comey explicitly acknowledged this fact. Any prosecutor’s hands in this context would have been tied by Comey’s recommendations whether he made them privately or in public. It is inconceivable that the U.S. Attorney and senior DOJ attorneys would recommend prosecution, or that Lynch would ultimately choose to prosecute, after the FBI concluded, even in a non-public memorandum, that doing so was unreasonable.

By conveying the advice publicly and in advance, Comey formally tied DOJ’s hands no more or less than if he had conveyed it privately. He simply took a few extra daggers of responsibility for himself in exchange for attenuating the conflict of interest charges that would have swirled much more violently if he had not publicly announced his views in advance of the Justice Department’s ultimate decision.