Democracy & Elections

The Attorney General’s Role in the Clinton Email Mess

Jack Goldsmith, Benjamin Wittes
Monday, October 31, 2016, 10:23 AM

Over the last 48 hours, a parade of former senior Justice Department officials of both parties have written op-eds or given interviews slamming FBI Director James Comey for his action last week on the Clinton email matter. Former Attorney General Eric Holder writes this morning in the Washington Post that Comey’s “decision was incorrect.

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Over the last 48 hours, a parade of former senior Justice Department officials of both parties have written op-eds or given interviews slamming FBI Director James Comey for his action last week on the Clinton email matter. Former Attorney General Eric Holder writes this morning in the Washington Post that Comey’s “decision was incorrect. It violated long-standing Justice Department policies and tradition. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season. That guidance, which reinforced established policy, is still in effect and applies to the entire Justice Department—including the FBI.”

Former Deputy Attorneys General Jamie Gorelick and Larry Thompson wrote yesterday that “senior officials in the Justice Department and the FBI” owe,

a solemn obligation to maintain [the Department’s] credibility. They are not to arrogate to themselves the choices made by the Justice Department and honored over the years. As part of that obligation, they must recognize that the department is an institution, not a person. As its temporary custodians, they must neither seek the spotlight for their own advancement nor avoid accountability for the hard decisions they inevitably face. Justice allows neither for self-aggrandizing crusaders on high horses nor for passive bureaucrats wielding rubber stamps from the shadows. It demands both humility and responsibility.

Leave aside, for a moment, the question of whether Comey acted rightly or wrongly, a matter we addressed in depth on Saturday and on which we think his moves are not above criticism.

But there’s an elephant in the room alongside all these DOJ officials who are clucking about the FBI director’s having gone rogue: Attorney General Lynch, having been consulted ahead of time, let him do it.

Lynch could have ordered Comey not to send the letter. She declined to do that, and instead acted in a manner that minimized her own responsibility, as the head of the Justice Department, for what Comey did.

This is not the way the matter is playing in the press. Many news stories over the weekend, citing anonymous Justice Department sources, suggested that Comey acted contrary to Justice Department wishes. The idea is that the DOJ was somehow helpless to prevent an out-of-control investigator from meddling in a presidential campaign with actions undertaken either to gratify Comey’s ego and arrogate power and responsibility to himself or to help Donald Trump—or because Comey just couldn’t help himself.

But that’s not how the Justice Department works, and that’s not what happened here. If you think what Comey did was beyond the pale, Lynch does not get to escape accountability for the action.

The wishes and preferences of the attorney general and deputy attorney general, such as they were, were, in fact, conveyed in a tepid, responsibility-eschewing way. The New York Times reports that “the Justice Department strongly discouraged [sending the letter to Congress] and told [Comey] that he would be breaking with longstanding policy.” It then adds that “Senior Justice Department officials did not move to stop him from sending the letter,” but “did everything short of it.”

Well, not everything, it turns out. Lynch, and her deputy, Sally Yates, did not demand that Comey hold off on sending the letter until they could make a decision for the Department about it. They did not pick up the phone or insist on a meeting to discuss the issue or even to express their views personally to Comey. “There was no direct confrontation between Lynch or Yates and Comey,” reports CNN. “Instead, the disagreements were conveyed to Comey by Justice Department staff, who advised the FBI chief his letter would be against department policy to not comment on investigations close to an election.”

Assuming these press reports are correct, this appears to be classic responsibility-dodging behavior that one of us (Jack) often witnessed during his time in the Justice Department. Sending a staffer to express a preference is what senior officials do when they do not have the courage of their convictions and do not want to take responsibility for action. The Attorney General was fence-riding; she didn’t want Comey to send the letter, but she also didn’t want the responsibility for ordering him not to send it.

Lynch clearly possessed the legal authority to direct Comey both not to go forward with the email review and also not to send the letter. Congress has specified that the FBI is “in the Department of Justice,” and also that “[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.” And by regulation, the Attorney General “shall [s]upervise and direct the administration and operation of the Department of Justice.” These and other statutes and regulations make plain that Lynch could have issued an order to stop Comey from acting.

Perhaps Lynch felt compromised from acting to stop Comey because of Bill Clinton’s tarmac visit, and Hillary Clinton’s hint that she might keep Lynch on as Attorney General, and Lynch’s inconsistent statements about her role in the Clinton email matter. In light of these taints, Lynch would have been accused of bias and political opportunism had she ordered Comey not to send the letter. This taint was among the original seeming conflict of interest sins that caused Comey to take his highly unusual course in the Clinton email matter beginning in July.

But Lynch’s situation is precisely why the Justice Department has recusal rules and lines of authority. There must be independent, non-compromised Executive leadership at the top of the Department to take responsibility for the Department’s actions. By allowing herself (1) to be compromised by the appearance of a conflict of interest, but nonetheless (2) to remain in charge of the Clinton case without recusal, Lynch appears to have forfeited her role as chief decider in the Clinton case.

Another possibility is that Lynch worried about a leak of any decision to stop Comey, and perhaps she worried that that leak would have a more dramatic impact on the election than Comey’s letter by suggesting a cover-up. But this is exactly the rationale that, according to news reports, led Comey to send the letter in the first place. He feared that the discovery of the Weiner emails would have leaked, with a greater impact on the election than a mere notice of the fact to Congress.

Yet a third possible reason for Lynch’s non-action is the departmental tradition of the Attorney General allowing the FBI and its director to act with significant independence, a tradition in which the Attorney General does not, despite statutory authority, routinely tell the Director what to do. There are exceptions to this tradition in important contexts, just as there are exceptions for disregarding a similar tradition of independence toward the Solicitor General when the stakes are high enough. One example of an exception is when the Attorney General invokes statutes like the ones referenced above to issue guidelines for domestic FBI operations. Another exception is legal interpretation on important matters. Whatever the scope of the tradition of FBI independence, it would not apply if the attorney general believed the FBI director were unjustifiably departing from the department’s policy related to investigations close to an election. If that were Lynch’s view in this very high-profile context involving compliance with an Attorney General mandate, she should have made that view known personally to Comey and ordered him to cease. Instead she sent an aide to express her preference.

We suspect that Lynch’s hands-off approach had its roots in a combination of all of these factors—her apparent conflict of interest, her worry about leaks, her desire not to be responsible for the Department not informing Congress about the Weiner emails, and the tradition of FBI independence, which would have raised the stakes of an order here yet further.

But whatever the explanation, it’s important to understand how convenient Lynch’s actions are for the very senior Justice Department officials who are now anonymously disparaging Comey’s actions. Had Lynch taken a firm action, she—not Comey—would be accountable. By proceeding the way she did, she gets all of the benefits of Comey’s action: Congress knows what happened; the new emails, whatever they may be, get ventilated before the election; and nobody can accuse the Justice Department (or Lynch herself) of any kind of cover-up for sitting on material that might have proven significant. What’s more, Lynch avoids the heat for making this happen. She gets to the be the victim of a departure from Justice Department protocol, the standard-bearer of the regular order. Comey takes all of the flack. In short, Comey’s instinct to fall on grenades, combined with Lynch’s fence-sitting, puts Lynch in the position of having her interests protected while appearing the victim of a power grab.

For what it is worth, we believe Comey would have complied with an order from Lynch to cease the email search or not send the letter. Jack’s experiences with him in the Justice Department a dozen years ago give us confidence that, based on his view of Article II, he believes he must follow the order (and legal interpretation) of an Executive branch superior unless he thinks that the order is so illegitimate as to demand resignation. If the Attorney General took responsibility for not informing Congress because of the election policy, Comey surely would have acquiesced.

There’s another reason to think that Comey would have followed this order: he could be removed for insubordination if he didn’t. There’s this myth that the FBI director cannot be fired except for cause. It’s not true. The FBI director serves a fixed ten-year term, assuming the President does not fire him. But there are no statutory restrictions on the President’s authority to remove the FBI director. As the Justice Department concluded without equivocation in this OLC opinion, “the FBI Director is removable at the will of the President.” OLC explained that “[n]o statute purports to restrict the President's power to remove the Director. Specification of a term of office does not create such a restriction. . . . Nor is there any ground for inferring a restriction. Indeed, tenure protection for an officer with the FBI Director's broad investigative, administrative, and policymaking responsibilities would raise a serious constitutional question whether Congress had ‘impede[d] the President's ability to perform his constitutional duty’ to take care that the laws be faithfully executed.” If Lynch had ordered Comey not to send the letter or continue the investigation and he had gone ahead and done so—or, more generally, if the FBI director were really behaving like a rogue actor beyond any sort of political or democratic control—Lynch’s boss, President Obama, had a remedy at his disposal.

But, of course, any such order from Lynch would have rendered her, not Comey, responsible for the outcome—a situation she has clearly sought to avoid.

That outcome would have been made more dramatic if Comey had resigned or been removed. We seriously doubt he would have resigned, especially if the basis for the Attorney General’s order were a determination that sending the letter to Congress (or pursuing the Weiner investigation) would violate Department policy. Comey almost certainly would have followed the order.

None of this is to exonerate Comey for the decisions that he has made about the Clinton matter since July. He acted based on the cards dealt to him, as did the Attorney General, and both are responsible for their actions and non-actions.

But under-appreciated in the Clinton email mess is that Comey has been operating in the shadow of a compromised Attorney General who continued her compromised ways when she refused to take responsibility for the Department’s actions last Friday.

In one paragraph of their op-ed, Gorelick and Thompson acknowledge many of the points that lead us to this conclusion. “Attorney General Loretta E. Lynch—nominally Comey’s boss—has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.”

Setting aside whether Comey actually violated the policy, it is passing strange to indict him so vigorously while forgiving the attorney general for not using her authority to restrain him from an action so purportedly outrageous.

[Disclosure: We know Director Comey personally and one of us has worked with him in prior government service. We write this on our own behalf and here state only our own views of these matters.]

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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