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Comey Reasserts His Independence

Ruth Marcus on

WASHINGTON -- Law enforcement officials tend to inhabit a universe that is both binary and terse: Prosecute or don't prosecute. Let the facts in the indictment speak for themselves. No further comment.

So the remarks by FBI Director James Comey accompanying his announcement that he would not recommend bringing charges against former Secretary of State Hillary Clinton were, as he acknowledged, "unusual." Indeed, that word scarcely captures what happened. Comey's comments were an extraordinary, important and, on balance, justifiable departure from normal practice. Clinton may not be better off for them, but the country is.

The decision not to bring charges was the correct one, but a simple announcement to that effect would have deprived the public -- deprived voters who are being asked to choose a president -- of any understanding of the judgment underlying that determination. It would have kept hidden from public view information that is insufficient to support criminal charges but that many voters may deem relevant to their assessment of Clinton's fitness for the presidency -- and that they can test against Clinton's own, often contradictory account.

Some Democrats will grumble privately -- they already are -- about Comey's commentary, even as they publicly celebrate the announcement that Clinton is effectively in the clear. Some Republicans will assert, without justification, that it shows Comey somehow taking a dive for Clinton; it took no time for Donald Trump to tweet that the outcome represented further proof that "the system is rigged."

Actually, it showed evidence of a system under stress -- a presumptive nominee facing criminal jeopardy; an investigation conducted under the tense deadline of an impending election; an inevitable cloud of partisan distrust made

even darker by the unfortunate tarmac meeting last week between Bill Clinton and Attorney General Loretta Lynch.

 

Comey took this bad situation and -- acting on his own -- made it better. "They do not know what I am about to say," Comey said of his colleagues at Main Justice.

Let us count the ways that Comey's behavior was extraordinary:

That he made the statement at all, given that charging decisions are left to the prosecutors, without an interim assessment by investigators -- even the FBI director himself -- pre-emptively asserting that "no reasonable prosecutor would bring such a case."

That he provided a synopsis of both the facts of the case and the legal analysis underlying his no-go conclusion, that previous prosecutions presented situations involving "clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice."

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