Charles Krauthammer says he thinks he understands why FBI Director Comey recommended that Hillary Clinton not be prosecuted, despite findings of illegality — and it doesn’t fit the usual GOP conspiracy theories.
In fact, it’s remarkably like what I said earlier in the week. Says Krauthammer:
The usual answer is that the Clintons are treated by a different standard. Only little people pay. They are too well-connected, too well-protected to be treated like everybody else.
Alternatively, the explanation lies with Comey: He gave in to implicit political pressure, the desire to please those in power.
Certainly plausible, but given Comey’s reputation for probity and given that he holds a 10-year appointment, I’d suggest a third line of reasoning.
When Chief Justice John Roberts used a tortured, logic-defying argument to uphold Obamacare, he was subjected to similar accusations of bad faith. My view was that, as guardian of the Supreme Court’s public standing, he thought the issue too momentous — and the implications for the country too large — to hinge on a decision of the court. Especially afterBush v. Gore, Roberts wanted to keep the court from overturning the political branches on so monumental a piece of social legislation.
I would suggest that Comey’s thinking, whether conscious or not, was similar: He did not want the FBI director to end up as the arbiter of the 2016 presidential election. If Clinton were not a presumptive presidential nominee but simply a retired secretary of state, he might well have made a different recommendation…
I think there’s something to that. This was a judgment call, and all sorts of factors go into judgments.
As I said before, there’s a point at which it is simply not in the national interest to reach back in time and use criminal statutes to punish those with whom one disagrees. Example: There are lots of folks who’ve always hated Tony Blair because of Iraq who now want to seem him prosecuted for it, just as there were Democrats who wanted to go back and prosecute people in the Bush administration once Obama took office (a proposition that Obama wisely dismissed).
Yep, I believe firmly in the rule of law, in the importance of having a country that is no respecter of persons. But in some cases, respect for the overall good of the country overrides consideration of the legal fate of an individual.
Comey had a judgment call to make, and he chose the less harmful option.
And if you don’t like it, remember that it was just a recommendation. It did not legally bind anyone. What he said was one man’s opinion (and also the unanimous opinion of those taking part in the FBI investigation — the opinions of professionals, not partisans). And I find his opinion defensible, even laudable.
Related Posts
Dilbert cartoon creator, Scott Adams, had a similar take.
http://blog.dilbert.com/post/147045002381/the-fbi-credibility-and-government
“This gets me to FBI Director James Comey’s decision to drop the case against Hillary Clinton for her e-mail security lapses. To the great puzzlement of everyone in America, and around the world, Comey announced two things:
1. Hillary Clinton is 100% guilty of crimes of negligence.
2. The FBI recommends dropping the case.
From a legal standpoint, that’s absurd. And that’s how the media seems to be reacting. The folks who support Clinton are sheepishly relieved and keeping their heads down. But the anti-Clinton people think the government is totally broken and the system is rigged. That’s an enormous credibility problem.
But what was the alternative?
The alternative was the head of the FBI deciding for the people of the United States who would be their next president. A criminal indictment against Clinton probably would have cost her the election.
How credible would a future President Trump be if he won the election by the FBI’s actions instead of the vote of the public? That would be the worst case scenario even if you are a Trump supporter. The public would never accept the result as credible.
That was the choice for FBI Director Comey. He could either do his job by the letter of the law – and personally determine who would be the next president – or he could take a bullet in the chest for the good of the American public. He took the bullet. Thanks to Comey, the American voting public will get to decide how much they care about Clinton’s e-mail situation. And that means whoever gets elected president will have enough credibility to govern effectively.
Comey might have saved the country. He sacrificed his reputation and his career to keep the nation’s government credible. It was the right decision. Comey is a hero. ”
—
Adams makes another good point that it would be better to have 8 Supreme Court justices than 9 because then it would require a judge on one side to not follow his partisan leanings. 5-4 decisions are not good for the country in the long run as they just fall whichever way the Court leans due to prior appointments.
If we are going to speculate on Comey’s motivation, let’s consider a juicey fact and the long pattern of favorable outcomes for the Clintons:
1-
“In 2004, Comey, then serving as a deputy attorney general in the Justice Department, apparently limited the scope of the criminal investigation of Sandy Berger, which left out former Clinton administration officials who may have coordinated with Berger in his removal and destruction of classified records from the National Archives. ”
2-
“Curiously, Berger, Lynch and Cheryl Mills all worked as partners in the Washington law firm Hogan & Hartson, which prepared tax returns for the Clintons and did patent work for a software firm that played a role in the private email server Hillary Clinton used when she was secretary of state.”
NOTE: Berger pleaded guilty to a misdemeanor charge of intentionally removing documents from the National Archives and destroying some. He was fined $50,000 with 100 hours of community service and had his national security license stripped for only two years.
3-
“Comey appointed as special counsel Patrick J. Fitzgerald, who ended up convicting “Scooter” Libby, a top aide to then Vice President Dick Cheney, of perjury and obstruction of justice. The charge affirmed the accusations of Plame and her former ambassador husband, Joe Wilson – both partisan supporters of Bill and Hillary Clinton – that Libby outed her as a CIA agent.”
NOTE: NYT reporter Judith Miller’s memoir suggests strongly that Fitzgerald manipulated testimony and improperly withheld key evidence to obtain Libby’s convictionl.
So basically…Hillary is too big to fail.
Awesome.
And Ford pardoned Nixon.
Yep. It was time to move on.
Similarly… no one was a more sincere advocate of Bill Clinton’s impeachment than I. Under my leadership, ours was the first newspaper (actually, tied for first — same news cycle) to call for Clinton to resign when he admitted to lying to us all about Monica Lewinsky. I thought Lindsey Graham, et al., did a fine job of seeing to it that he WAS impeached.
But then, when the Senate declined to convict, I thought that was OK, and probably for the best. Democrats were SO convinced that the impeachment was unjust that had he been forcibly removed from office, it would have torn the country apart. (Remember the tantrum Democrats threw — in many cases are STILL throwing — when the Supreme Court, quite rightly, ruled that Bush had won in Florida? Their reaction over Clinton being removed from office would have been worse.)
Leaving such a discredited president in office was not a good thing. But it wasn’t as bad as the crisis we would have had in our politics had he been removed…
Brad……”usual GOP conspiracy theories.” Back when you were advocating Clinton’s impeachment, Mrs. Clinton said the whole dust-up was a “right wing conspiracy.” Is that a usual Democrat conspiracy theory or was it a special one.?
Oh, that was definitely a Democratic conspiracy theory — Hillary’s favorite…
So if I have this right: You shouldn’t indict someone for a crime they have committed if:
A) They are one of the major party’s nominees for POTUS; and,
B) The other major party’s nominee would be a worse POTUS.
Do I have that right?
I don’t agree with Comey’s actions. I would have preferred Hillary was indicted. Then she would have had to choose to step aside and let either Bernie or Biden run or else risk losing straight up to the worst Republican candidate ever.
I don’t believe Bernie would beat Trump.
And I think it doubtful that the Democrats would be able to nominate Biden over all those pumped-up, passionate Sanders supporters.
Were she indicted, I find it hard to see any good outcome for the country.
Perhaps I shouldn’t say “good outcome.” Maybe I should say “not-horrible outcome.”
Because there’s no GOOD outcome the way things stand. The best — that is to say, the least-horrible — outcome we can expect at this point is that Hillary Clinton is elected, which will mean we’re in for four, if not eight, years of vicious partisan political warfare that will make the Bush and Obama years look like a lovefest. She is SO hated — partisan antipathy to her is so much greater than it was to predecessors before they were elected — that we are in for a miserable time.
But the alternative is so much worse than THAT.
We are in for it in this country… I expect it to be really ugly…
You’re right about that. I wonder if this is similar to how the country felt in the late 1850s and early 1860s before…
Frankly, as awful as the war would be, the country was blessed to have the best president in our history to lead us through it.
That’s not what we’re facing…
I’m just wondering if the feeling of such a divided country is similar to how the people felt back then. I mean, it hasn’t gotten to the point where Senators are beating each other with canes yet, but would you be really that surprised if say, Rand Paul got into a big argument with Al Franken and ended up hitting him?
If you’re trying to make me squirm, rest assured you are succeeding.
But I ask you to revisit my remarks, particularly these two points:
1. I believe the question of whether to prosecute in this case to be a judgment call, not a slam-dunk. As we know, folks in the criminal justice system make judgment calls every day (the whole national issue over police shootings is about the quality of judgment calls police are making).
2. Mr. Comey has only offered his opinion on which way to go on that judgment call. Any prosecutor with jurisdiction can go ahead and prosecute anyway, if he or she disagrees. If none does so, it will indicate that a lot of other legal minds agree with that judgment. And if you say all the prosecutors during a Democratic administration are untrustworthy, I will refuse to agree with you. I believe enough, collectively, in the honor of officers of the court that I refuse to accept such an assertion of complete, 100 percent partisan corruption…
Let’s not over think this. Maybe Comey just thought the facts of the case didn’t warrant an indictment. Much ado about very little I’d say.
According to Comey, the decision not to prosecute was a unanimous one by his staff, not his opinion alone.
Right.
How often do you think his staff disagrees with him? Does the term “career limiting decision” apply?
Whenever their consciences dictate, I would think.
But then, I have a brighter view of human nature among professionals than you do.
Different people perceive the same facts differently. I project my own experiences onto what I expect Comey’s staff to do. We had lively daily discussions of the issues on the editorial board. I used to say we made our decisions by consensus, and we did. But Nina Brook scoffed at that, saying, “Yeah, right! We do what you want to do.” I could see how it could look that way, because I was the guy who in the end, most of the time, decided what the consensus would be. But I did that on the basis of what I’d heard. I was good at that — synthesizing the essence of the discussion — so the group generally went along with my characterization of the consensus. That could look like me just calling the shots, but it didn’t feel that way to me – I was seriously making the effort to reflect everyone’s input. And I can tell you no one on that team was shy about voicing disagreements — certainly not Nina.
Anyway, I would expect the atmosphere around Comey — among a circle of smart professionals — to be similar. And I would expect anyone who truly thought she should be prosecuted to speak up.
How frequently did you go to the mattresses with your boas in your career? And consider that an FBI agent night not have a whole lot of other career options especially when considering lucrative government pensions.
Boss not boas
Also please, realize that your job was ABOUT opinions not facts or evidence. Big difference.
Fairly frequently. And I only lost one argument — which is why we endorsed Bush for the GOP nomination in 2000.
Oh, wait, I was talking about boas…
But seriously, I was not known for being shy in expressing my disagreement. As one boss told me once in the early 1990s, I needed to decide whether I wanted to be right, or be effective. I never totally made up my mind on that. I wanted to be BOTH…
when I know what my boss wants, I agree with him as well.
Of course they were unanimous.
Really?
See, that hasn’t been my experience in the working world. And I know enough about Burl, who started this sub-thread, to know that that hasn’t been his experience, either.
Of course, some of my bosses have appreciated my frequent disagreements with them, and others have not. Comey strikes me as the sort who WOULD.
And I’ve learned from experience that how much your disagreement is appreciated depends to a certain extent on how you express it.
The biggest trouble I ever got into from disagreeing — my boss really chewed me out for it, in front of everybody — actually involved disagreeing with a peer, not my boss.
We were discussing something in an editors’ meeting back when I was still in the newsroom — in the days when there were lots of editors, and we had lots of meetings — and one of my peers, a good friend of mine, was expressing her views about something.
She was seated several people away from me on my side of the conference table, so I wasn’t looking at her while listening. I was staring at the ceiling.
Suddenly, in the middle of her talking, and while I was still looking at a spot on the ceiling — completely absorbed in abstract thought, not even slightly conscious of the existence of other human beings who might have feelings — I said “WRONG!” very firmly.
And, while still staring at the ceiling, I held forth with a soliloquy explaining in no uncertain terms exactly WHY she was wrong, just slicing and dicing what she had been saying.
I don’t think I finished, though, because my boss, Gil Thelen, jumped on me hard, pointing out what I’d done. Apparently, it had been obvious to everyone but me. People who had been looking at my friend who had been talking said she looked as though she had been slapped when I cried out “WRONG!”
I’ve always felt really bad about that. I apologized, of course, but that didn’t seem enough. So, by way of further penance, I thought I’d share that story about myself…
As I said, yours was a business centered around expressing opinions. That’s not typical, especially in hierarchical government organizations like the FBI or the military.
How often did you express an opposing view to your boss about the business decisions he made? When they cut the opinion page down in size and frequency, did you protest?
Brad, YOU LIE! Doug, it seems you only see “groupthink.” Good leaders avoid it and encourage (and hire) people with diverse opinions.
Brad, of course I’m referencing Rep. Wilson’s outburst at a State of the Union Address, and just kidding!
Bob – we’re talking about government employees, not private firms. How often do teachers contradict principals? or principals go against administrators?
These are hierarchical jobs that tend to reward tenure and compliance more than “thinking outside the box”. There is no real career path to move laterally or up over your boss. It doesn’t happen. You have to think about protecting that pension.
I’m just trying to picture the meeting where Comey asked for the input of the other investigators. “Johnson, I think we should let Hillary walk. What do you think?”
Or consider the impact if Comey said “I polled my direct reports and it was 3-2 against indictment”. Even one dissenting opinion would require refuting it which would open up even a larger can of worms.
This had to be presented as unanimous and it had to be against indictment. Comey was protecting his job and punting the responsibility to the voters.
When you say it “had to be presented as unanimous,” do you mean to suggest what you indeed suggest, which is that Comey lied?
Do you believe that?
No, he didn’t lie. He got the answers he wanted out of the people who work for them. I have no doubt it was unanimous. But I’ll wait for the memoir ten years from now if the agent who didn’t want to be the first one to tell his boss he disagreed.
Good leaders avoid groupthink, whether in the private sector or in government. As for leadership, the good, the bad and the ugly exist in both.
Sorry, I disagree. I’ve seen the behavior first-hand across numerous organizations where I have been a consultant. The worst was at KPMG where everyone bowed down to the partners. I quit after six months.
But I also saw it over the course of 8 years working for the postal service. The subservience to the hierarchy was systemic and driven by that almighty pension at the end of the rainbow.
Leon Lott _ good leader or not? Ever hear of any deputy disagree with him publicly?
Doug, just because you have not experienced something personally does not mean it does not exist. Faith …
Bob – what haven’t I experienced? I am applying my 35+ years of professional experience that includes working for government and private companies across the country and my observations of the typical behavior I have seen over and over. Government employees are far more likely to fall into line with their managers. The hierarchy demands it.
You have not worked in the entire universe of “work.” Good leadership does happen!
When did I say that it doesn’t? It happens all the time. I just don’t believe it happened in this case for Comey because of the circumstances involved. Will he allow all of his direct reports to be interviewed by the media to confirm what he said? That would demonstrate his leadership.
He made a political decision.
I am simply defending my premise: “Doug, it seems you only see ‘groupthink.’ Good leaders avoid it and encourage (and hire) people with diverse opinions.” And: “Good leaders avoid groupthink, whether in the private sector or in government. As for leadership, the good, the bad and the ugly exist in both.”
Do you agree that groupthink is faulty leadership and seeking diverse opinions is good leadership? I have not commented in this sub-thread about Comey’s decision.
I don’t “only” see groupthink. I see it practiced more often in government agencies than in private. Groupthink is the norm in government for a number of reasons (policies, career advancement norms, inability to change jobs due to benefits/pensions).
I’m open to hearing specific examples of good leaders in government who encourage opposing views from their direct reports.
Doug, you keep saying direct “reports”. You mean “subordinates” right? I assume your usage derives from “people that report to you”, but I’ve never heard that term before.
Bryan, I think “direct report” has become fairly common. Here’s a web page about it.
It’s a sort of business jargon that reminds me faintly of “impact” being used as a verb, although it’s not NEARLY as grating on the ear.
I strongly suspect it came into use because of some misdirected, egalitarian urge to avoid saying “subordinate.” I see the hand of an H.R. professional in this…
In fact, HERE is a little essay urging people not to use “subordinate.” I looked up the person’s bio, and apparently she is NOT employed in H.R., but she does say she is “a fan of business writing.”
Wow. Wow. It really does take all kinds to make a world, doesn’t it?
To me, that reads like, “a fan of getting punched in the face.”
Doug, I suggest you do some research on leadership, as I have. But to give you an example, President Kennedy’s handling of the Cuban Missile Crisis is considered a great example of leadership. Wrong move, nuclear war. I recommend “Essence of Decision: Explaining the Cuban Missile Crisis”, by Allison and Zelikow.
I remember drills in elementary school on what to do in case of nuclear attack. I remember a teacher telling me nuclear war was imminent. And I remember all too well the sadness, the fear, of our Nation when President Kennedy was assassinated.
Bob – any examples since I was 3 years old?
Bryan – “direct reports” refers to those employees who you have been specifically assigned managerial responsibility. There is the concept of “indirect reports” as well (or in org chart terms “dotted line”) where you might direct the activities of someone but not be within the same organizational hierarchy tree.
I assume (perhaps incorrectly) that in a law firm paralegals report to someone who reports to a junior partner who reports to a senior partner…
I’ve been around long enough to know that bad news rarely flows uphill in organizations.
Okay, that makes sense. It sort of distinguishes your specific subordinates from someone who is your subordinate, but doesn’t report directly to you.
Regarding bad news flowing uphill, I can’t speak for how other lawyers deal with their paralegals and junior lawyers, but I always tell everyone: “Bad news doesn’t get better with age”. In the context of some sort of error, the worst thing you can do is to not bring it to my attention and hope it just goes away. Same with clients.
As for disagreements in opinion, I regularly have them with my law partner on strategy issues in cases, but we talk it out and ultimately we decide on how to go forward. I don’t really have the same dynamic with my direct reports, to use your lingo. I’ll solicit their input, talk through things, and sometimes (but not often) they bring up something I haven’t thought of. Most of the time, it’s me directing them on a specific task. I’m in a very small firm, so we’re not representative of large firms.
It’s sort of like the Army in larger firms. You have one person (the senior lawyer in charge) who is trying to achieve the overall objective and has the responsibility for the overall concept. They usually have a junior lawyer who gets discrete assignments, analogous to a Major telling a Captain to “Take that hill”. The paralegals and assistants are like the enlisted guys and are assigned even smaller, more discrete objectives with less discretion, like: “Move forward”.
But the Army ain’t a democracy. I’m guessing the FBI ain’t a democracy, either.
Sure Doug. Many. But nothing will change your mind. I’m done, my friend!
I served as a junior officer on a Rear Admiral’s Staff (CNATRA, pronounced “Sinatra” – Chief of Naval Air Training) at NAS Corpus Christi. We had disagreements all the time, up the chain of command. The Admiral was presented recommendations, and ultimately, the Admiral made the decision and was responsible for it. No Senior Officer (perhaps a few, but I never served with one) would be happy with just one recommendation. Officers that kissed a** were not popular, but sometimes did move up.
How about the possibility that Comey was just telling the truth when he said they couldn’t demonstrate criminal intent, mens rea?
Which, when you read anything about Comey and his character and reputation, is the only reasonable explanation.
I’m constantly amazed at how easily some people will ascribe the worst possible motives to decent people who don’t deserve such insults, such contempt…
It’s not an insult to suggest Comey considered the political ramifications of an indictment as well as his own career self-interest in the decision. He’s human. An indictment would have required him to resign sooner or later. Maybe he felt the job was more important on the whole than whether Hillary was indicted for being a paranoid, secretive, liar.
What Lynn said. Here’s what Comey said:
“Although 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…In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: 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. We do not see those things here.”
Doug notwithstanding, Comey did *not* conclude that a crime had been committed; he find insufficient evidence to make that claim. There was abundant carelessness with classified information, but carelessness with classified information is endemic–in large part because the whole classification system is so widely regarded as a joke. When he says “no reasonable prosecutor” would prosecute this case, that’s hardly a close judgement call; he backs it up with ample legal precedent. And it’s not a special case; no reasonable prosecutor would prosecute *anybody* for this. TBS, an underling would have been in big trouble; actions don’t have to be criminal in order to be out of bounds, and Hillary was clearly out of bounds. But at this point the only “boss” that can fire Hillary is her party–and the experience of a certain other political party has shown us how difficult it is to “fire” a presidential candidate already chosen by the voters.
Did Comey conclude that Hillary lied multiple times in public interviews regarding her email server? The answer is yes. That’s why they couldn’t put her under oath or record her testimony.
Let’s say Comey went for indictment. Would she have dropped out? Would brainwashed Democrats call it a witch hunt? Would Obama and Loretta Lynch given Comey full support? He would have been pressured to resign especially if Obama came out and said he disagreed with him. Comey took the path of least resistance politically.
I may not know my history very well but I’d be interested in knowing if there is any historical precedent of an FBI director who publicly disagreed with the President and Attorney General?
And think about this – if he went for indictment and if Hillary wins the election, Comey would never be able to keep his job. It’s a ten year term that started for him in 2013. I’m not sure he can stay anyway even if Hillary wins but he certainly could not if he indicted her and she got off.
Doug, re your question about FBI directors’ dissent…when Robert Mueller was FBI head, he disagreed with the AG and with the de facto President for national security (Cheney) on waterboarding and other “enhanced interrogation techniques” and insisted FBI people have nothing to do with it. And Comey himself, though not in the same job at the time, confronted AG Gonzales directly on the matter. So occasional collisions between FBI directors and the executive branch and DOJ can occur.
I just didn’t think it was up to the FBI to determine whether indictments should or should not be brought. That’s the part that seems odd to me.
So, FBI Director Comey has acknowledged that the agents involved with Hillary’s case have been sworn to secrecy and threatened with lie detector tests if they discuss any details of the case. If everyone was unanimous, why would this be necessary?
http://nation.foxnews.com/2016/07/14/gag-order-chilling-effect-feared-after-fbi-confirms-special-secrecy-agreements-agents
But, no, there was no possible career limiting consequences that might come from disagreeing with the boss. Nope.
Actually, when it comes to investigations, that’s sort of par for the course, isn’t it?
Go read that ruling on Pascoe v. Wilson (if I had to suffer through it, so should you). You’ll find repeated references to people being sworn to secrecy, and “integrity” defined as not letting anything get into the media.
It’s pretty typical.