Jim Comey had the 2016 Election in his hands. He decided not to blow it up. Trump vs. Clinton can go forward. It was the right call.
If Comey had ended his Press Briefing yesterday by stating that he will recommend that the Justice Department seek a federal felony indictment for Hillary's mishandling of classified documents, her candidacy would have been toast. Neither Attorney General Loretta Lynch nor the President could have saved her.
Nobody has ever run for President as the nominee of one of the two major parties while under federal indictment. If Hillary found herself in the position of trying to be the first, she would have failed miserably.
Prosecutors don't prosecute every violation of the law. They are allowed to use discretion. On a case involving unauthorized removal and retention of classified documents, 18 USC 1924, a misdemeanor, they are allowed to consider whether there was an intention to harm the United States, whether there was the pursuit of personal gain, or whether there was an attempt to obstruct justice. Misleading, even lying to the public in the political arena, does not rise to the level of obstructing justice.
If she had lied to the FBI in her three and a half hour interview, the FBI clearly would have recommended prosecution. Apparently, Director Comey was of the opinion that she didn't.
The Clintons are smart. They don't lie in writing. They don't lie to the FBI and most of the time, they don't lie under oath. Outside of that … well, a lady has to do what a lady has to do.
Why did she get a break and General David Petraeus ended up being prosecuted and convicted of retaining secret information? Petraeus was investigated under a different law, 18 USC 793, a felony that pertains to highly classified defense information like weapons design and code books. He showed information of that nature to his mistress and retained some at his residence after signing a statement assuring the CIA, his last government employer, that he had no classified information in his possession or under his control.
They had Petraeus cold. They could have easily gotten a felony conviction. But the prosecutors exercised their discretion and allowed him to plead to a misdemeanor with no prison time. Plus, he got to keep his pension. Most people think, given General Petraeus's record of service to the country, it was the right thing to do.
In Hillary's case, she was in clear violation of the prohibition against removing and retaining non-defense-related classified documents, which is a misdemeanor. Unlike General Petraeus, she didn't lie in writing and there is no evidence that she lied to the FBI or retained defense-related material covered under Section 793, the felony statute.
So, the question before Comey was, should he blow up the election at this late date over a misdemeanor upon which he could not get a conviction (think of the jury pool in Washington DC or New York). Or, was he going to lay out the facts uncovered in his investigation and let the political process determine who should be the next President.
Comey did his job. He laid out the facts and, following policy in similar cases, declined to recommend prosecution.
Good for him.
I will post again on Wednesday August 3, 2016 or before if the news flow dictates.
Comments are welcome at tomc[at]wednesdayswars[dot]com. Comments will be addressed in subsequent posts.