Noah writes:
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.
I disagree with this. I think that it is entirely possible — necessary, even — to believe that James Comey got it wrong, but that, in so doing, he set a precedent that ought to apply to all who find themselves in the same situation — at least for a time. Certainly, I am not of the view that a bad precedent must stick around forever. I am, however, of the view that it is unsustainable for that bad precedent to be changed the first time that a politician of the opposite party is being considered for prosecution. If, as James Comey insisted, no reasonable prosecutor would have brought a case against Hillary Clinton, then, if and when the next case against a Republican is similar, the same rule ought to be applied. The alternative is caprice.
Is the case against Trump similar to the one against Clinton? Having now seen the indictment, I am not sure that it is. Hillary’s alleged crimes — for which she absolutely should have been prosecuted — were bad. Trump’s are worse, and the case against him is stronger. To a large extent, that is Trump’s fault. Hillary was a lawyer, and she behaved like one once her transgressions had been discovered. Trump is a narcissist, and he behaved like one after the government contacted him. Reasonable prosecutors have to make reasonable decisions, and from what I read this morning, the case against Trump is more than reasonable. Unlike Noah, I’d like the the Comey Precedent to be enforced going forward. But it doesn’t apply here.