Last July, after announcing that no charges would be brought against Hillary Clinton in her email scandal, James Comey was lauded by the Left as a paragon of virtue, a Joe Friday “law and order” guy who refused to buckle to political pressure, and who called it straight. Republicans, shocked that Comey could lay out such a detailed case against Clinton, and yet not indict her, went searching for dots to connect to prove he was being paid off. Elaborate – and strained – conspiracy theories followed.
Now, eight days before Americans go to the polls, Comey has dropped a bombshell into the campaign’s last week, publicly announcing a review of previously unknown emails that could potentially be from the Clinton server, found – bizarrely – during a separate investigation of Anthony “Carlos Danger” Weiner’s, estranged husband of Hillary’s closest aide, Huma Abedin.
90 days after heaping praise on Comey as the human embodiment of justice, Team Clinton and the Democrat Establishment have gone medieval on the FBI Director, accusing him of everything from diabolical partisanship to, ironically coming, breaking the law. Republicans, and GOP nominee Donald Trump, for their part, see an element of redemption in Comey’s actions, perhaps making up for his egregious lapse in judgement over the summer.
What explains a man who fails to make an obvious recommendation for indictment in the summer, but then drops a bombshell a little more than a week before a presidential election dealing with the same topic, upending decades of Justice Department tradition?
There is no cabal. There is no secret deal.
Anyone who has worked or works in the federal government understands Comey right away.
The answer is as easy as it is obvious. CYA (Cover Your um, Butt).
Prostitution may be the oldest profession, but CYA is probably the oldest professional practice, perfected over millennia in government service, where your position and responsibilities co-exist with an unspoken power structure that can create real life consequences. It takes what would normally appear black and white and makes it many different shades of grey.
We laud whistle blowers who alert authorities to waste, abuse and mismanagement. Indeed, we believe it is the obligation of every government employee to call out wrong-doing. But dig a bit deeper and look at the individual, harrowing stories of whistle-blowers – reassigned, shunned, denied promotion or advancement based on bad performance reviews – and you begin to understand why doing only what you were hired to do is sometimes the safer option, despite the potential ethical compromises it entails.
CYA explains Comey’s two blockbuster decisions this year in this way.
The “black and white” of the email server investigation could not be clearer. Mrs. Clinton broke at least three sections of the criminal code regarding defense information and the unlawful transmission of classified data. 18 USC Sections 793(f), 798(a) and 2071(a). It is likely that the Democrat nominee also committed perjury in a statement taken on August 8 2015, in which she swore to have provided all information that was or could be relevant. Further, it is uncontestable that there are American citizens who today are in jail – careers and livelihoods destroyed permanently – for having done a fraction of what Mrs. Clinton stands accused of doing.
But into this evolving mix, were real but intangible pressures.
While independent, Comey reports to the Attorney General, a Democrat political appointee. Comey himself was appointed by President Obama, who, as the Chief Executive of the United States, was already on record saying that there was no evidence that Mrs. Clinton intended harm to the nation’s security.
And then there was the subject herself. Wife of a former president. Former senator and Secretary of State. The presumptive nominee of her party. The first woman to be nominated by a major party. Potentially the first woman president of the United States.
Comey had the power to change American history.
Once the evidence became clear, Comey faced major obstacles. The FBI can only gather facts and make recommendations, it cannot independently bring an indictment. For that, Comey would need the Justice Department to convene a Grand Jury, issue subpoenas, take sworn testimony and, if supported, read out charges.
But that was going to be a non-starter with Lynch’s Justice Department. There was no way Justice was going to allow an independent investigative body to undermine the Democrat nominee, particularly since records indicate that President Obama used Mrs. Clinton’s unsecured address to communicate with his SECSTATE under a pseudonym. If Mrs. Clinton was guilty of a crime, so was the president.
Comey’s only leverage would be to go public and threaten to resign unless a Grand Jury was empaneled. But that would trigger a political crisis, and likely cost Comey his job, without doing creating action on the charges.
So, Comey took the middle road. He indicted Hillary Clinton in the court of public opinion. Instead of forcing a showdown with Justice by recommending an indictment where he would ultimately lose, he chose instead to latch on to the non-existent standard that President Obama had used in his reasoning of Clinton’s innocence – no intent – and that no reasonable prosecutor could seek to charge Mrs. Clinton (of course he meant to say only Obama Justice Department prosecutors), and then took the highly unusual step of dumping the entire email file, with its very damning evidence, in the public square to inform the American people of exactly what the SECSTATE had done, and to make apparent the serial lies and deceit that Mrs. Clinton had engaged in from March 2015 forward.
The apparent moral compromise? Though an indictment might not have been possible without triggering a crisis, with all the information, the American people could remedy the situation with their vote in November. The reasoning is not all that different from Justice John Roberts, who invented a new standard for Obamacare – one not proffered by the Administration – in order to justify the statute, shaking his finger at American voters for electing people whose policies they don’t support.
Last week’s revelations that up to 650,000 emails had been found on Anthony Weiner’s computer, regarding an investigation of Weiner’s inappropriate texting with a minor, represented a no-win situation – which originated with his Faustian bargain in July. Sit on the story until after the election, and face enormous blowback for a cover-up, especially if new evidence is uncovered. Go public with the story and potentially interfere with a national election, but do so knowing that there will be nothing provable before the election that would constitute information not known in July.
Comey’s letter to Congress, notifying them of the new emails and the new FBI review, was careful to note that there was no evidence that anything new. It was the CYA approach, but of course that got drowned out in the ensuing political circus.
Now, 7 1/2 days before the election, Comey has effectively lost control, with the FBI melting down in a torrent of leaks, not simply about the unusual investigative methods – an excessive courtesy – extended in the Clinton email investigation, but now about FBI management foot-dragging on an investigation of the Clinton Foundation. The modicum of credibility and stature that Comey tried to maintain for himself and his organization has been vaporized by bureaucratic tactics that have created the very result that Comey had originally feared.
A word in Comey’s defense.
It is easy for us, watching the news, to grow inflamed and righteous, and demand heads on a platter. To be frustrated by the inaction and equivocation that too often defines Washington. At the same time, it is no small thing to be in possession of information that points to criminal wrong doing by both the Democrat nominee for president as well as the sitting POTUS. The implications from triggering criminal charges of these two, are virtually beyond understanding, as the future of the Republic hangs in the balance.
The most courageous thing that Comey could have done would have been to privately request that Lynch empanel a Grand Jury, and ensure that prosecutors brought all information and witnesses in for consideration, or threaten to go public and resign. It would have led to a political, if not a constitutional crisis, but the fiction of an unbiased Justice Department would have been exposed. Comey himself would probably have been vilified as a partisan hack, and would himself relegated to the right-wing rubber chicken circuit.
In the end, I think that Comey tried to do what he thought was best, to expose the Clinton corruption lies and law breaking without triggering a constitutional crisis through a request for formal charges. He fudged it, and left it to voters to determine Mrs. Clinton’s “guilt” through the election.
No one counted on Anthony Wiener.
If Mrs. Clinton loses on November 8th, and the email enquiry fails to turn up anything new, there is going to be political hell to pay in America for years to come. Bush v. Gore will look tame in comparison. Comey made that possible by not being courageous in the first place.
If any situation serves to define governance in Washington today – particularly between that of our perception and the reality, Comey v. Clinton is the clearest example.