Yes, the Fix Was In

Andrew McCarthy writes at National Review,

Comey has implicitly confirmed what we’ve been saying here for well over a year: In the Clinton emails caper, the fix was in.

…He knew Obama’s Justice Department would sweep Hillary’s violations under the rug, so he played along.

…the February 14 memo (the physical memo and its informational content) belonged to the government. Comey orchestrated the transmission of its contents to the media without authorization. That’s a leak, period. Comey has tried to circumvent this inconvenience by a crimped definition of “leak” — it is only, he told CNN’s Anderson Cooper, the “unauthorized disclosure of classified information.” No, that is a classified leak. Other unauthorized disclosures to the media of non-public government information may not be quite as serious, but they are still leaks.

Yes, the Fix Was In
These columns have repeatedly pointed out that the decision whether to indict Hillary Clinton for mishandling classified information was not the FBI’s call. It was up to the Obama Justice Department, which was in the tank for Mrs. Clinton and was taking direction from President Obama. In April 2016, Obama publicly stated that he did not want his party’s inevitable nominee charged with a crime.

In making that assertion, Obama distorted the Espionage Act, falsely implying that it required proof of intent to harm the United States before someone could be convicted of mishandling classified information. To the contrary, the law holds that a person is guilty (1) if she willfully causes the unauthorized transmission of classified information — meaning if she understands the wrongfulness of the action and intentionally performs it anyway — or (2) if through “gross negligence” she permits the information to be removed from its proper place or to be otherwise mishandled (see Section 793(d), (e), and (f) of Title 18, U.S. Code). The Justice Department adopted Obama’s erroneous intent standard, as, ultimately, did Comey.

The former director’s statements in the Brett Baier interview firmly establish that the decision not to indict Mrs. Clinton was based on Obama Justice Department standards, not on the terms of the statute.

For example, when asked why he was confident, long before Clinton was even interviewed, that she would not be charged, Comey said the investigators working the case told him, “Look boss, on the current course and speed, it looks like it’s not gonna get to a place where the prosecutors would bring it.” It was not that the evidence was insufficient under the law; it was that the Justice Department would not indict.

…the FBI just has to describe what she did. If what she did was extremely careless, then that does add up to “grossly negligent” under the 1917 statute — but it is for the Justice Department to connect those legal dots. If Obama’s Justice officials fail to do so, that’s politics, not law enforcement, so why let the non-partisan FBI get dragged into it? It is not the FBI’s job to make pronouncements on the law. It is not the FBI’s burden to pull out the thesaurus and don Mrs. Clinton’s misconduct in just the right lexical finery until it finally fits the Obama Justice Department’s misinterpretation of a clear criminal statute.

Again, Comey would have us see him, simultaneously, as the stalwart check on potential Justice Department corruption and the helpless slave of Justice Department direction. But he can’t be both. The simple fact is: Nothing obliged him to exercise prosecutorial discretion in the emails investigation. The FBI’s job was to investigate, not to decide whether the evidence was sufficient to support an indictment. If he was worried that Attorney General Loretta Lynch was conflicted, the upright move was to advise her to step aside — and to do it not at the end but at an earlier point, when it might have helped the FBI get out from under the irregular constraints her Justice Department was imposing on investigators. And a prosecutor’s conflict is not a basis for the FBI to appropriate her authority — Lynch had a deputy and other subordinates who could have acted as attorney general if her recusal was warranted.

More to the point, there was no need to say anything. There is no requirement that the FBI or the Justice Department ever announce that an investigation has been closed. The former director keeps asking, “What was I to do” under these difficult circumstances? The answer is: nothing. The government speaks in court, when a person is formally accused of a crime and has the full pallet of due-process rights to defend herself. Unless and until that happens, no one is entitled to know whether an investigation exists or what its status may be.

The public did not have the right to know what was happening in the Clinton investigation. In fact, we recently learned in connection with the inspector-general’s report on Comey’s deputy, Andrew McCabe, that Comey had quite properly tried to conceal the existence of an ongoing investigation of the Clinton Foundation. It was not Comey’s fault that the Democrats nominated someone under criminal suspicion, but neither was it Comey’s duty to remove the suspicion. Indeed, Comey repeatedly told Trump that the FBI could not publicly say Trump was not a suspect: If new evidence ever emerged that turned Trump into a suspect, Comey explained, he would be obliged to correct the misimpression.

So why not the same rules for Clinton? After all, those are the rules. When the Democrats nominated Clinton, they were knowingly running the risk that the investigation might explode her candidacy. If the country had elected her, we would have been running the risk (however minimal) that a Clinton Justice Department might someday indict her. It was not the FBI’s task to manage Mrs. Clinton’s risks or defend the Obama Justice Department’s politicized enforcement standards.

Director Comey took it upon himself to do both. It was not possible simultaneously to do that and to protect the FBI from the fallout.

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