Former Justice official: Mismanagement by Lynch, Comey over Clinton emails

It all started on the tarmac when former President Bill Clinton left his plane and visited Attorney General Loretta Lynch on hers. However innocent that visit was, it suggested to cynical eyes a potential interference with the ongoing Justice Department investigation of candidate Hillary Clinton regarding her emails.

Attorney General Lynch, realizing she should have asked the former president to leave, before witnesses, made a second mistake when she turned over the decision-making in that investigation to FBI Director James Comey, rather than her deputy at Justice with the instruction that a wall be built cutting her off from the department’s decision whether or not to bring criminal charges in that investigation.

{mosads}That course would have been the correct one. The Department of Justice, underscore the word “Justice,” makes the prosecutorial decisions. The Federal Bureau of Investigation, underscore “Investigation,” conducts investigations and then makes private recommendations to their prosecutorial colleagues who decide who gets prosecuted and who doesn’t.

The relevant, if anecdotal story was told about an incident when newly appointed Attorney General Robert F. Kennedy took over the Justice Department in 1961, a time when J. Edgar Hoover was a powerful and unchecked force, though under Kennedy’s hierarchical control.

Kennedy didn’t have his parking credential and was stopped at the entry from entering the Department one Saturday, his car top down, casually dressed, his big dog on the seat behind him.

“Where is your ID?” the guard asked.

“I’m the Attorney General,” Kennedy replied.

“I don’t care if you’re J. Edgar Hoover”, the guard answered. “You must have ID.”

My point: the FBI investigates; the Justice Department prosecutes. The former agency is subservient to the latter. In those distant days, and today.

That is how it was done when I was a prosecutor in the Kennedy Justice Department, working regularly with the FBI and other investigative agencies. Officials in later (Republican) Departments confirmed to me that was how it was done in their experiences. No FBI official ever decided who was to be prosecuted, and never commented about their work publicly.

The decision of Attorney General Lynch was “wrong!” to apply the ludicrous interjection candidate Donald Trump exclaimed about his opponent’s remarks in his debates with Hillary Clinton. It was wrong of Lynch not to keep the prosecutorial decision at Justice. Wrong of her to turn it over to the FBI. Wrong to allow that decision to be made publicly by FBI Director Comey.

JUST IN: Dept. of Justice dedicating “all necessary resources” to review new Clinton emails https://t.co/70zA5GAI2t pic.twitter.com/ABTJFaio99

— The Hill (@thehill) October 31, 2016

“Wrong!” also for Comey to state publicly that in his opinion that Hilary Clinton was not indictable, and wrong to then criticize her for exercising bad judgement. The double wrongs by Comey compounded the double wrongs of the Attorney General.

Make that a triple wrong when last week, just days before the election, with no evidentiary facts before him, Comey wrote to congressional committees that maybe there was more to his earlier controversial decision, but maybe not.

GOP chairman calls Comey’s disclosure unfair to Clinton https://t.co/lI5zC5TJ6Y pic.twitter.com/lMKoZDcdGb

— The Hill (@thehill) October 31, 2016

What could he have had in mind? Whether or not his conduct violated the Hatch Act, as has been suggested, it certainly violated settled Departmental procedures which had been followed by that agency historically, and for good reasons.      

So, everything was done wrong from day one by Attorney General Lynch and to the present by FBI Director Comey. The operating procedures defining the responsibilities of the FBI and Department of Justice are wise, as this current fiasco demonstrates. How we get this genie back into the bottle is a profound conundrum.

But Attorney General Lynch and Director Comey ought to begin the process immediately, recognizing they acted wrongly and taking the investigation back to Justice where it belonged and still does.

Comey may be under investigation for Clinton letter https://t.co/tHlOt95wAN pic.twitter.com/XebowTgzxM

— The Hill (@thehill) October 31, 2016

The last time serious and consequential prosecutorial decisions need to be made is in the middle of a presidential campaign, and that decision ought to be made at and by the Department of Justice. Comey needs to pass the buck back to Lynch to do what she was supposed to do from the tarmac meeting forward. 

Libertarian Bill Weld called Comey’s action “disgraceful”, and Conservative Glenn Beck called it “irresponsible,” adding their voices to those of the Clinton campaign officials. But the White House spokesman Josh Earnest meekly stated that Comey was in a “tough spot!”  

The President needs to make certain his appointees get off that spot and do the right thing, and soon!    

Goldfarb worked in the Kennedy Justice Department as a prosecutor of organized crime cases, and wrote about those experiences in Perfect Villains, Imperfect Heroes: RFK’s War Against Organized Crime.

The views of Contributors are their own and are not the views of The Hill