In early July, in a performance as legally baffling as it was politically predictable, Federal Bureau of Investigation director James B. Comey recommended against a felony prosecution of the former secretary of state and certain Democratic presidential nominee. The recommendation was gratuitous: It is the FBI’s function to investigate crimes; the Justice Department alone exercises charging discretion. It is a commonplace for case agents and government prosecutors to consult on both investigative tactics and charging decisions. It is a rarity, though, for the FBI director to get directly involved in, much less make, an indictment decision. That, in effect, is what Comey did. That his recommendation was uncalled for makes it all the more indefensible.
To stick for a moment with the FBI’s actual function, let’s note that its agents performed admirably, particularly in the forensic aspects of the investigation: the examination of Mrs. Clinton’s “homebrew” servers, the painstaking reassembly of millions of bits of data into thousands of e-mails (out of the 30,000 e-mails that Clinton and her phalanx of lawyers and aides had quite intentionally sought to delete and destroy). The FBI thus carried its burden to uncover evidence that can be used to establish the essential elements of crimes defined in federal penal laws. In this instance, according to Director Comey’s unusually transparent and devastating account of what his investigators found, it is simply incontestable that then–secretary of state Clinton (a) mishandled classified information in a manner that was grossly negligent (indeed, Comey called it “extremely careless”) and (b) concealed and destroyed federal records.
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