Republicans Should Reject the Comey Precedent

Donald Trump’s second indictment — this time, a federal case involving 37 counts related to his alleged mishandling of more than 100 classified documents, including making false statements to investigators, conspiracy to obstruct the investigation, and violations of the Espionage Act — is a political prosecution. That’s not just the defense that Trump and his allies are mounting, but his opponents, too.

What does Hillary Clinton’s conduct in advance of the 2016 election have to do with Donald Trump’s indictment? At least on a cosmetic level, Clinton’s behavior doesn’t depart substantially from the misconduct in which Trump allegedly engaged.

As Andrew McCarthy observed, the parallels are hard to avoid. Trump allegedly violated record-keeping requirements in statute and potentially exposed sensitive information to unauthorized eyes. So, too, did Clinton. Trump is said by prosecutors to have obstructed investigators’ work. More than 30,000 emails in Clinton’s possession were destroyed despite the congressional subpoena targeting them. The distinction between the two is in how the DOJ — specifically, the FBI under Director James Comey — handled the case against Clinton.

In what has become an infamous statement to the press, on July 5, 2016, Comey concluded that “no reasonable prosecutor” would find grounds for an indictment against Clinton in relation to her decision to house classified materials on an unsecured “home brew” server and transmit those materials via private email servers and electronic devices. While the bureau found “evidence of potential violations of the statutes regarding the handling of classified information,” Comey determined that those violations could not be successfully prosecuted.

But as Republicans said to all who were willing to listen, the standard Comey set for prosecuting Clinton went well beyond the existing statute and had not been applied before. Indeed, this standard has not been applied since. Comey set a terrible precedent that does not deserve to be observed as one. At least, that is the conclusion we might draw from the statements Republicans made at the time.

In a grilling before the GOP-led House Oversight and Government Reform Committee on July 7, 2016, Comey confirmed that Clinton’s public comments regarding the server and her conduct were false or misleading. He defended himself by indicating that he could not “establish that [Clinton] acted with the necessary criminal intent.” After all, “the secretary may not have been as sophisticated as people assume,” Comey said, ostensibly, in Clinton’s defense. How one could be “extremely careless” and “negligent” while also being too dense to understand the gravity of their misconduct is a mystery that remains unsolved.

The FBI director himself confessed that he was “setting” a “precedent,” and Republicans agreed. Though Comey defended it as one designed to “treat everybody fairly,” GOP lawmakers called it a “dangerous precedent.” Representative Paul Ryan said it appeared like “preferential treatment for Clinton.” Senator Rand Paul asserted that the “rule of law has been shattered.” The FBI director “has rewritten a clearly worded federal criminal statute,” Senator Ted Cruz agreed. “It seems that there are two standards,” said former representative Jason Chaffetz. “The fact pattern presented by Director Comey makes clear Secretary Clinton violated the law. Individuals who intentionally skirt the law must be held accountable.”

Republicans rejected the standard James Comey set in 2016, as they should have. The FBI director’s subsequent bungling of the on-again, off-again Clinton probe confirmed the wisdom of their skepticism toward the showboating FBI director. The GOP should resist the urge to ratify the Comey precedent today, now that it serves as a blunt instrument of political utility.

If Trump is found to have violated the law — not just the mishandling of classified materials, which seems only ever to be a prosecutable offense if the alleged offender is not a household name, but the allegedly deliberate misleading of investigators and obstructive conduct — he should face the consequences he himself has said should befall anyone who violates the statutes that apply to the handling of confidential materials.

The equal but opposite uneven application of justice is no remedy for the uneven application of justice. The fact that the Comey precedent, applied to Trump’s case, might exculpate him of misconduct despite the publicly available evidence suggestive of his guilt demonstrates that the FBI director abdicated his duties in 2016. Republicans were right to reject the Comey standard then. They should continue to reject it today.