The Hillary Investigation: Won't The Public Ultimately Decide?

Bill Clinton's silly drive-by on the Phoenix airport tarmac clearly rendered Attorney General Loretta Lynch incapacitated from making - as would otherwise fall to her - the final decision on whether or not to indict Hillary Clinton over her (intentional, or not) email misconduct. Even if she had, as was reported, been thinking about recusing herself from making a decision, the airport's casual chat unalterably disabled her. So, rather than a Deputy Attorney General making the decision in Lynch's stead, Lynch announced that she would accept the recommendation of FBI Director James Comey, who was charged with investigating the Clinton email incident, and later testified to that. At the end of the day, Comey seems to have made the decision that Clinton should not be indicted (although he testified that "Don't Indict" was unanimous among the entire FBI/Justice personnel who investigated the matter).

In doing so, he publicly and stridently announced that "no reasonable prosecutor" would have brought that case, and thus, ostensibly, spoke on behalf of every federal prosecutor in the nation, before and now. Had he stopped there, Hillary would have been in the pink - "No Reasonable Prosecutor." So there! In stating what was in actuality his personal belief about the unreasonableness of such a prosecution, one should take Comey, a man of consummate integrity, at his word. And I would have seen it the same way if Attorney General Lynch (full disclosure: a personal friend, and a woman of unfailing integrity), had made the final decision using that precise verbiage, rather than summarily announcing the Justice Department's acceptance of the Comey and team recommendation.

Based on how Comey presented his decision - which was heard (and analyzed) the world over - there is nowhere for anyone to go. Yes, Donald Trump and even non-Trump Republicans who are nonetheless anti-Clinton, as well as vituperative congressional hearings and editorial blasts can - some will maintain, should - argue that Comey's statements strongly undermine the Clinton candidacy. And the House Judiciary Committee has grilled both Comey and Lynch, but their testimony will not change the fact that the system is set up so that one person - whether the Attorney General or, in this instance, basically the Director of the FBI - would decide whether Hillary Clinton would remain the Democrat candidate for President of the United States.

But what about that? Granting an up or down decision to a single FBI director or a single attorney general (or deputy) or both on whether to indict an individual who is a candidate for the presidency might raise genuine questions about placing too much power into the hands of just one or even two persons. I mean, it wasn't so long ago that a pro-Bush Katherine Harris, Florida's then Secretary of State, counted "hanging chads" to put George W. Bush into office. But there, at least, the courts were in place to look at what she did, whereas, in the Clinton scenario, case law makes clear that courts have absolutely no power to compel an indictment.

Of course, one alternative would be for the Justice Department to have put the whole email episode before a grand jury to let it decide Clinton's fate. But that doesn't work too well, even putting aside the fact that it would put the decision of whether she can run into the hands of only 23 Americans; 23 people who could basically decide the presidency. But beyond that limitation, the fact is that a grand jury follows evidence that the prosecutor chooses to present and the law as she instructs it on. If a prosecutor believes a grand jury should not indict, it likely won't. So the window dressing of a grand jury presentation aside, the decision will have been made by the prosecutor whose office is presenting the case. Or at least that specter will remain.

Another alternative is to take the case out of the criminal justice realm altogether. In an impeachment proceeding, the entire United States Congress and Senate participates in the decision, as happened in the impeachment and trial of Bill Clinton. Although one could argue that such a scenario would allow for a representative democracy to act, let's face it, any decision would likely fall along party lines, particularly given that today those lines are drawn with cement.

Now, particularly given who Secretary Clinton's opponent is and what, in my personal view, he may present to the United States and the world, I am truly pleased that Hillary Clinton can proceed to an up or down vote on Election Day. My personal bias aside, is it really acceptable that there has been essentially a one man band decision?

Could we go so far as to say that the Director of the FBI, or indeed an Attorney General of the United States, could decide an election? I don't think so. The email scandal is and will remain through November a very big deal. Director Comey gave Clinton the relief of no indictment while certainly not giving her a clean bill of health - General Lynch chose to not discuss the matter factually. Secretary Clinton's opponents thus obtained the ability to publicly analyze the facts and draw inferences for the electorate in a way that no FBI Director or any law enforcement official should properly use them. And, at the same time, it allows Clinton and her campaign to use Comey's very deliberate words as helpful as they could be to her.

So maybe, just maybe, what Comey was really doing by laying out a detailed account of his findings - exquisite detail about Secretary Clinton's "extremely negligent" conduct - while recommending that Clinton not be indicted, was to let the voters decide. Let Clinton and her camp have their say; let the pundits debate; let Trump spin away - Comey certainly gave them all fodder. Yes, perhaps, albeit without saying so, Comey was specifically intending to let the American people at large decide Clinton's fate precisely so that he (recognizing the limitations placed on Lynch) wouldn't be the one man to decide the election.

Isn't that the way elections should be decided, basically without FBI Directors or Attorneys General? Honorable public official as Comey surely is, I wouldn't want him making the final decision alone, any more than I would have wanted the likes of J. Edgar Hoover making it. It seems to me given the way Comey did it, my vote and yours on what should happen to Hillary's candidacy - indeed, whether she should become president - have now become as important as his.