Two items in the news this week — the acquittal of Cliven Bundy’s sons and their co-defendants, and Jim Comey’s statement on extending the FBI investigation of Hillary Clinton — bring us back to the same basic problem: the difficulty of doing the work of a prosecutor under the hot lights of political controversy. As so often happens when politics intrudes, the real scandal is not bad motives but how the system itself operates, and how poorly equipped it is to resist the warping influence of politics. There remains no solution but accountability by popular sovereignty.
The Bundy verdict looks at first glance like jury nullification, an open-and-shut case in which the jury just refused to convict because they sympathized with the defendants. There’s a long history of juries deploying nullification for good causes and bad, as a bulwark of liberty and a shield for bigotry. The Bundys represent a general political cause that should engender some sympathy (the excessive ownership of land in the West by the federal government); the Bundys and their particular case should not. There’s been a lot of hyperventilation about whether nullification in this case is a sign of “white privilege” or some such (ask the O.J. jury about that), but an L.A. Times report Thursday, “How the Government Lost Its Case against the Oregon Occupiers,” suggested that the more immediate culprit was a common one in acquittals of this nature: prosecutorial overcharging:
Defense attorneys in the case say that prosecutors became overconfident, electing not to file lesser charges that would have resulted in easier convictions — and likely little, if any, jail time. . . . The most significant of the charges against the occupation’s leaders was a count of felony conspiracy to intentionally intimidate government workers and prevent them from doing their jobs.
The conspiracy count was actually a double-whammy: If the defendants could persuade the jury that no criminal conspiracy had occurred, then they could not be convicted of the accompanying weapons charge — which requires the government to prove the guns had been brought on federal property to commit a crime.
The defendants said they were not trying to intimidate or hurt anyone by occupying the refuge. . . . Ultimately, the jury agreed that the government was unable to prove the intent required to establish criminal conspiracy.
You can read the whole thing to see a juror explain that this was precisely why the jury voted to acquit. Many of the Bundys’ accomplices actually pleaded guilty to lesser charges, but the government decided to make examples of them and swing for the fences, and it ended up striking out. It was not irrational for prosecutors to think that the seriousness of the standoff and the publicity it engendered justified throwing the book at the Bundys to discourage imitators, but in the absence of political attention to the case, they might have decided to include some lesser charges to ensure that the defendants faced some easier-to-prove penalties.
That was likewise what tanked the George Zimmmerman prosecution: Prosecutor Angela Corey decided to appease the public outcry over the shooting death of Trayvon Martin by charging Zimmerman only with second-degree murder, and not the easier-to-prove lesser-included offense of manslaughter. Lawyers, including criminal prosecutors, make this risk assessment all the time, concerned that offering a judge, jury, or arbitrator a compromise fallback position decreases their odds of winning everything they’re asking for. Corey’s gamble blew up in her face and contributed heavily to her loss in Florida’s August 30 GOP primary, in which she was running for reelection as state attorney for the fourth circuit. That kind of comeuppance won’t happen here, because the FBI’s federal prosecutors are accountable ultimately to Attorney General Loretta Lynch, whose boss won’t face election again. But the cause is the same: prioritizing the most serious charges to make a political statement, rather than prioritizing the charges with the best chance of obtaining a conviction.
The right thing to do was to treat Hillary Clinton the same way the justice system would treat an unknown intelligence officer — or, for that matter, a director of the CIA or the FBI — who had done the same thing. That would probably have meant stripping her of her security clearance and using every bit of leverage the FBI and the Justice Department have to pressure her to plead guilty.
But there were always two problems with doing this. One, Comey would have to expose the FBI to enormous potential public criticism for interfering in an election by prosecuting a presidential nominee — moreover, the only candidate standing between Donald Trump (a man loathed by the Beltway press and by official Washington in both parties) and the White House. That’s not just a risk to Comey personally, but to the institution he leads and is loyal to, an institution that could lose a lot of its power and funding if it made the wrong enemies at either end (or both ends) of Pennsylvania Avenue. So Comey had to look as if he was bending over backwards to be fair to Hillary. But if you’re bending over backwards, you’re still facing in the wrong direction.
Second, Comey has pretty clearly known for a while now that a recommendation to indict Secretary Clinton would get a frosty reception from Attorney General Lynch — and, as Andrew McCarthy has noted, possibly from the president himself. After all, Obama used a pseudonym to e-mail Hillary at her private e-mail address and publicly insisted a year ago that she had not endangered national security (one of the core issues his subordinates at the FBI were then investigating). Townhall’s Guy Benson has the details of why Comey probably knew in July, and clearly knows by now, that the attorney general wants him to back off.
In light of this, Comey’s press conference in July looks like a passive-aggressive attempt to even the scales by simultaneously absolving Clinton of criminal charges he couldn’t bring anyway (the FBI cannot indict anyone on its own and cannot long stand at loggerheads with DOJ) while laying out a damning case on the facts to the public and leaving it to voters to do his job for him. This was in many respects a replay of what Chief Justice Roberts did with the Obamacare cases, and likely for the same reason: to protect his own institution from having to take responsibility for applying the law without fear or favor against very powerful people whose stock in trade is fear and favor. While many Democrats seethed at how Comey had handled the press conference, they dutifully lined up at the time to defend (and rejoice in) what seemed to be his final verdict, while Republicans blasted Comey’s lack of follow-through.
The right thing to do was to treat Hillary the same way the justice system would treat an unknown intelligence officer who’d done the same thing. That would probably have meant stripping her of her security clearance and using every bit of leverage the FBI and the DOJ have to pressure her to plead guilty.
Fast-forward to Friday, when Comey took the unorthodox step of writing to Congress to announce that the FBI had unearthed additional e-mails in “an unrelated case” (it turned out to be the investigation of Anthony Weiner), and those same Democrats went into full-blown assault mode against the FBI, with former DNC chair Howard Dean accusing Comey of siding with Vladimir Putin and Senate minority leader Harry Reid accusing Comey of breaking the law to favor Trump.
As Ryan Lizza noted yesterday at The New Yorker, a decision to wait until after November 8 would have permanently tarnished Hillary’s election, given the partisan positions already taken by Obama and Lynch, including Lynch’s lobbying Comey not to disclose the renewed investigation before the election. Recall the way that John Quincy Adams’s administration was crippled from Day One by the public appearance that he had won the White House only through a “corrupt bargain” with then–House speaker Henry Clay. In that light, Comey may have done Hillary a favor by yet again dumping the issue in the laps of the voters. But once again, his actions are far removed from what a prosecutor would do in evaluating a case against an ordinary government employee without a voting constituency.
Kenneth Starr, like Comey, was a universally respected figure in the Beltway legal establishment before he got in the business of investigating the Clintons; to this day, Starr’s reputation as an appellate judge and advocate is unblemished. (Ironically, his downfall this year as president of Baylor University was due to undue laxity in investigating sexual wrongdoing.) Where Starr’s investigation ultimately failed was not in assembling facts and applying the law, but in shaping public opinion in advance of the final vote by the U.S. Senate — a job very far removed from what ought to be the job of a prosecutor. William Sessions and Louis Freeh, the two FBI directors who served under Bill Clinton, had experiences similar to Comey’s: Every time they got anywhere near investigations of the Clintons, they found that they could not operate the way a prosecutor normally should.
There’s no foolproof remedy for the warping influence of politics on the criminal-justice system; the closest thing we have is the ballot box.
— Dan McLaughlin is an attorney in New York City and a National Review Online contributing columnist.
Editor’s Note: This piece has been emended since its publication.