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The FBI’s Public Commentary on the Clinton Investigation

I have never been a fan of the notion – at the Justice Department, it is the received wisdom – that the election calendar should factor into criminal investigations.

Law-enforcement people will tell you that taking action too close to Election Day can affect the outcome of the vote; therefore, it should not be done because law enforcement is supposed to be apolitical. But of course, not taking action one would take but for the political timing is as political as it gets. To my mind, it is more political because the negatively affected candidate is denied any opportunity to rebut the law-enforcement action publicly.

The unavoidable fact of the matter is that, through no fault of law enforcement, investigations of political corruption are inherently political. Thus, I’ve always thought the best thing to do is bring the case when it’s ready, don’t bring it if it’s not ready, and don’t worry about the calendar any more than is required by the principle of avoiding the appearance of impropriety.

A problem arises, however, when you start bending other rules. FBI Director James Comey bent a few of them when he decided to (a) make a public recommendation against prosecution, (b) nevertheless make a public disclosure of the evidence amassed by the FBI, and (c) include a public announcement that the investigation was closed.

All of this is highly irregular. Director Comey says he is “a big fan of transparency,” and aren’t we all? But transparency is like virtually everything else we applaud: it is not an absolute value; it has its place and its limitations.

Criminal investigations are not supposed to be transparent. There are very good reasons why, for example, grand jury proceedings are secret. They are the same good reasons why the FBI generally protects the identity of sources of information. If people come to believe their cooperation with law enforcement is inevitably going to result in the publicizing of their communications with agents or their testimony in the grand jury – even if there is no indictment or trial – then they are going to be considerably less cooperative.

That would significantly harm the mission of law enforcement. That, in turn, would badly damage the rule of law.