At National Review last weekend, I addressed the Democrats’ loopy claim that the FBI became a Trump partisan in the 2016 election. The claim is worth more examination in light of President Trump’s dismissal of FBI Director James Comey.
In Clinton World, self-absorption always triumphs over self-inspection, so nothing could be more predictable than Hillary Clinton’s scapegoating of Comey, a diversion from acknowledging what really cost her the election: her own manifest flaws. Congressional Democrats are along for the ride: those who were swooning over Comey in July when he announced that Clinton would not be charged, then ripped him in October when he reopened and quickly reclosed the FBI’s investigation, and then branded him a Trump partisan hack after the votes were counted, are suddenly back in swoon mode.
Comey, of course, hasn’t changed through all of this. He’s always been the same guy. The laughably transparent explanation for all the careening around him is politics.
Mrs. Clinton was hoping to put the e-mail scandal behind her by arguing that she had been vindicated by a thorough, highly professional FBI investigation. But she lost, so the investigation that was to be her credential for office became the downfall that denied her. Comey thus became Rationalization 1 for her defeat … at least until Rationalization 1A, Russia, got some media traction. So now, Comey has gone from villainous J. Edgar Hoover to valiant Elliot Ness again – not out of anything he did, but because Democrats calculate that framing his termination as part of a “cover-up” may resuscitate the Trump-Russia narrative, which has grown stale in the absence of concrete evidence of collusion.
Note that in all of this, Comey is always in the center of events, but he has never been in control of events. Don’t be fooled by appearances. The FBI director has been the most visible player, but he has not come close to being the most consequential.
Yes, the FBI that actually carries out the dual functions of criminal inquiry and foreign intelligence collection. In either type of investigation, it is the Bureau that performs the rubber-meets-the-road work of gathering information and analyzing it, searching for the connections that prove actions and intentions. Consequently, Director Comey has gotten top billing in this drama – a happenstance made more pronounced by the director’s very forceful personality. It has made him look more important than, in fact, he has been.
Some perspective, please. There could have been no indictment against Hillary Clinton unless the Obama Justice Department approved it. Comey headed an investigative agency; he had no authority to exercise prosecutorial discretion – to decide whether charges got filed.
In the Clinton caper, Comey ostensibly seized the Justice Department’s decision-making power. In reality, though, he exercised it within obvious limitations, and under circumstances in which his superiors factored decisively.
Those superiors were President Obama, the chief executive, who made crystal clear in his public comments that he did not want Clinton indicted; and Attorney General Loretta Lynch, the head of the real decision-making department – the Justice Department. Contrary to media-Democrat intimations, Lynch never actually recused herself after being caught in a shameful private meeting with Bill Clinton. That was right before the Justice Department – not Comey, the Justice Department – declined prosecution against Mrs. Clinton.
Lynch could have ignored Comey, and surely would have if he had not come out the “right” way. In effect, Comey was able to project the authority of the official making a tough call as long as the call he made was against filing an indictment.
The Obama Justice Department was never, ever going to indict Hillary Clinton. Even if he had wanted to push against that outcome, Comey had to know doing so would have been futile. But as long as he accepted the inevitable – as long as he defended the decision with dizzying disquisitions on mens rea and other criminal law esoterica – he would be given a wide berth.
That is what enabled him to do some highly irregular things: e.g., the July press conference describing the damning evidence but recommending against criminal charges, and the late October letter informing Congress that the investigation had been reopened (but, significantly, not suggesting that any charges were anticipated). The point, if I may speculate, was to protect the reputation of the FBI as much as possible under circumstances in which the Bureau was unavoidably embroiled in a political controversy. Comey knew there would be no indictment. That meant the FBI was vulnerable to charges of participation in a whitewash. The director no doubt convinced himself that it was essential, for the sake of the rule of law, to show that the FBI had not been corrupted – that it had investigated as thoroughly as the constraints imposed by the Justice Department allowed.
Comey’s agenda to protect the FBI happened to coincide with the political agenda of Obama and Lynch. They, too, needed to show that there had been a thorough, professional investigation – they knew they could prevent any charges from being filed, and they reckoned that a solid FBI investigation would make their non-prosecution decision look like good-faith law enforcement rather than partisan politics. With a little help from their media friends, the general public would remain in the dark regarding the instances in which Lynch’s Justice Department frustrated the FBI’s ability to investigate: the close working relationship with Clinton team defense lawyers, the cutting off of salient areas of inquiry, the bizarre immunity grants.
What the public would see was Hillary “exonerated” after the FBI “left no stone unturned.”
Undoubtedly, Obama and Lynch were not thrilled by Comey’s press conference, laying out the FBI’s investigation. They may even have been quite angry about it. But they also realized that Comey remained a net positive in the equation. Because of their vulnerabilities – Obama because he could not be seen as interfering with law-enforcement, and Lynch because of her bone-headed meeting with Bill Clinton – they needed the decision not to indict to appear to be made by someone with bipartisan credibility. Comey fit the bill, so they were willing to put up with a lot … as long as he held firm on the bottom line.
But make no mistake: If Comey had gone the other way, his recommendation to file charges would have been rejected, and his wings would have been clipped in a hurry. He is being cast as the official responsible for key decisions in the Clinton case and the fate of the Clinton candidacy. But the decisive scandal is Hillary Clinton’s alone, and the key decisions were never Jim Comey’s to make.