Former Attorney General Mukasey: Comey seriously erred and has saved Clinton from being charged for her email

Wall Street Journal by Former Attorney General Mukasey

We need not worry unduly about the factual void at the center of the FBI director’s announcement on Friday that the bureau had found emails—perhaps thousands—“pertinent” in some unspecified way to its investigation into Hillary Clinton’s handling of classified emails while she was secretary of state.

True, we don’t know what is actually in the emails of Huma Abedin, Mrs. Clinton’s close aide, but we can nonetheless draw some conclusions about how FBI Director James Comey came to issue his Delphic notice to Congress, and what the near-term future course of this investigation will be. Regrettably, those conclusions do no credit to him, or to the leadership of the Justice Department, of which the FBI is a part.

Friday’s announcement had a history. Recall that Mr. Comey’s authority extends only to supervising the gathering of facts to be presented to Justice Department lawyers for their confidential determination of whether those facts justify a federal prosecution.

Nonetheless, in July he announced that “no reasonable prosecutor” would seek to charge her with a crime, although Mrs. Clinton had classified information on a private nonsecure server—at least a misdemeanor under one statute; and although she was “extremely careless” in her handling of classified information such that it was exposed to hacking by hostile foreign nations—a felony under another statute; and apparently had caused the destruction of emails—a felony under two other statutes. He then told Congress repeatedly that the investigation into her handling of emails was closed.

Those decisions were not his to make, nor were the reasons he offered for making them at all tenable: that prosecutions for anything but mishandling large amounts of classified information, accompanied by false statements to investigators, were unprecedented; and that criminal prosecutions for gross negligence were constitutionally suspect.

Members of the military have been imprisoned and dishonorably discharged for mishandling far less information, and prosecutions for criminal negligence are commonplace and entirely permissible. Yet the attorney general, whose decisions they were, and who had available to her enough legal voltage to vaporize Mr. Comey’s flimsy reasons for inaction, told Congress she would simply defer to the director.[...]

When the FBI learned that two of the secretary’s staff members had classified information on their computers, rather than being handed grand-jury subpoenas demanding the surrender of those computers, the staff members received immunity in return for giving them up. In addition, they successfully insisted that the computers not be searched for any data following the date when Congress subpoenaed information relating to its own investigation, and that the computers be physically destroyed after relevant data within the stipulated period was extracted.

The technician who destroyed 30,000 of Mrs. Clinton’s emails after Congress directed that they be preserved lied to investigators even after receiving immunity. He then testified that Clinton aides requested before service of the subpoena that he destroy them, and that he destroyed them afterward on his own initiative.

Why would an FBI director, who at one time was an able and aggressive prosecutor, agree to such terms or accept such a fantastic story?

The search for clues brings us to an email to then-Secretary Clinton from President Obama, writing under a pseudonym, that the FBI showed to Ms. Abedin. That email, along with 21 others that passed between the president and Secretary Clinton, has been withheld by the administration from release on confidentiality grounds not specified but that could only be executive privilege.

After disclosure of those emails, the president said during an interview that he thought Mrs. Clinton should not be criminally charged because there was no evidence that she had intended to harm the nation’s security—a showing required under none of the relevant statutes. As indefensible as his legal reasoning may have been, his practical reasoning is apparent: If Mrs. Clinton was at criminal risk for communicating on her nonsecure system, so was he.

That presented the FBI director with a dilemma that was difficult, but not complex. It offered two choices. He could have tried to proceed along the course marked by the relevant laws. The FBI is powerless to present evidence to a grand jury, or to issue grand-jury subpoenas. That authority lies with the Justice Department, headed by an attorney general who serves, as her certificate of appointment recites, “during the pleasure of the President of the United States for the time being.”

However, the director could have urged the attorney general to allow the use of a grand jury. Grand juries sit continuously in all the districts where an investigation would have been conducted, and no grand jury need have been convened to deal with this case in particular. If she refused, he could have gone public with his request, and threatened to resign if it was not followed. If she had agreed, he would have been in the happy position last week of having discovered yet further evidence that could be offered in support of pending charges. If she had refused, he could have resigned.

There is precedent within the Justice Department for that course. During what came to be known as the Saturday night massacre in 1973, Attorney General Elliot Richardson and his deputy, William Ruckelshaus, resigned rather than follow President Nixon’s order to fire Special Prosecutor Archibald Cox. Indeed, on his own telling, Mr. Comey threatened to resign as Deputy Attorney General unless the George W. Bush administration changed its electronic-surveillance program, although the Foreign Intelligence Surveillance Court later approved the feature to which he had objected.

Instead, Mr. Comey acceded to the apparent wish of President Obama that no charges be brought. There is precedent for that too—older and less honorable. It goes back to the 12th century when Henry II asked, “who will rid me of this troublesome priest?” The king’s eager subordinates duly proceeded to murder Archbishop Thomas Becket at the altar of Canterbury Cathedral. That choice—to follow the sovereign’s wish—left Mr. Comey facing only further dishonor if he did not disclose the newly discovered emails and they leaked after the election.

And what of the future? Mr. Comey reportedly wrote his letter to Congress over the objection of the attorney general and her deputy. Thus, regardless of what is in the newly discovered emails, the current Justice Department will not permit a grand jury to hear evidence in this case. And because only a grand jury can constitutionally bring charges, that means no charges will be brought.

Which is to say, we know enough to conclude that what we don’t know is of little immediate relevance to our current dismal situation.