FBI Director James Comey’s choice to recommend against the federal prosecution of former secretary of state Hillary Clinton has spurred no shortage of commentary, to say the least—including THE WEEKLY STANDARD’s editorial this week, “Hillary Skates.”
Former federal prosecutor Andrew McCarthy is Comey’s longtime friend and former colleague, but he penned his own withering criticism of Comey’s action. Arguing that Comey’s claims that there was insufficient evidence of Clinton’s intent, McCarthy outlined the applicable statute and concluded, “I think highly of Jim Comey personally and professionally, but this makes no sense to me.”
But Jack Goldsmith, a former Justice Department official (and my colleague at the Hoover Institution) disagrees with McCarthy: “I believe Comey did what he did because he believed what he said about Clinton’s actions and whether prosecution was warranted, and he thought that announcing these beliefs was the least bad option, in a very tricky context, to protect the integrity of the FBI’s investigation and more broadly to protect the integrity of the Bureau and the Department of Justice.”
Both McCarthy and Goldsmith make strong points. But as I watched the debate unfold, I couldn’t help but think of the situation’s greater historical irony.
In 1988, amid investigations into the Reagan administration, Ted Olson urged the Supreme Court to nullify the Independent Counsel statute. As he argued (and Justice Antonin Scalia later wrote in dissent), the statute violated the Constitution’s separation of powers by prohibiting the president from exercising full control over the Independent Counsel, an executive branch officer.
When the Supreme Court ruled in favor of the Independent Counsel, many on the left cheered. The New York Times‘s Anthony Lewis, the leading Supreme Court writer of his era, spoke for many when he celebrated the Court’s decision as rejecting efforts by “the radical right in this country” to “advance Presidential power.”
But time proved Lewis and like-minded liberals wrong. Scalia was vindicated barely a decade later, when Congress decided to extinguish the Independent Counsel statute in the aftermath of the Clinton scandals.
By 1999, however, Lewis himself was leading the charge against the statute—and he credited Scalia for getting it right the first time:
In other words, it took Bill Clinton to teach liberals that the Independent Counsel statute was fundamentally flawed and dangerous. They couldn’t see that truth during the Reagan and Bush administrations, but suddenly they saw clearly in the Clinton administration. (One can accuse them of hypocrisy, but I prefer to see it as “better late than never.”)
I thought of that conversion experience this week, as progressives nationwide blew a collective sigh of relief about halfway through Comey’s press conference, when they realized that their presidential candidate wasn’t going to be indicted.
In the run-up to Comey’s decision, some on the left argued that Republicans had inappropriately “politicized” the investigations into the Clinton email server. The Clinton campaign denigrated the entire investigation as “politically drummed up,” as the Hill put it.
If Clinton’s supporters suddenly woke up to the dangers of mixing criminal law and national politics, that would be a welcome development. For President George W. Bush’s entire second term, the left reveled in Special Prosecutor Patrick Fitzgerald’s ability to pursue their political foes.
They even coined a term for it: “Fitzmas.” As in the gift that they all hoped for, Fitzgerald filing charges against members of the Bush administration for allegedly leaking Valerie Plame’s identity. Never mind the problems with Fitzgerald’s case, which were largely evident at the time but all the more so today, thanks to recent writings by Judith Miller and Peter Berkowitz.
As the left reveled in the politicized investigations of Scooter Libby, Karl Rove, and the Bush administration at large, as well as the state prosecution of Tom DeLay, TWS warned strongly against the politicization of criminal law and the criminalization of politics.
First, in a 2005 editorial titled “Criminalizing Conservatives,” Bill Kristol and Jeff Bell urged that “a comprehensive strategy of criminalization had been implemented to inflict defeat on conservatives who seek to govern as conservatives. And it is clear that thinking through a response to this challenge is a task conservatives can no longer postpone.”
A year later, Fred Barnes reiterated these points in “Criminalizing Politics“:
To be clear, the “criminalization of politics” is in the eye of the beholder. Few liberals would have said at the time that Scooter Libby had been the victim of criminalized politics; they would have said that he was prosecuted for breaking the law. (And they’d likely still say that today, even after we know better.)
By the same token, few conservatives would say that Hillary Clinton was the victim of criminalized politics. (I certainly wouldn’t; I’m inclined to agree with Rep. Trey Gowdy’s assessment of the situation, although I hesitate to reject categorically Comey’s decision not to prosecute, given the statute’s history.)
Perhaps this is the best test for each of us to apply to ourselves: if we find ourselves silently cheering on a prosecution even partly because the prosecution improves the electoral prospects of our favored candidates, then we should take a step back. Turning to prosecutors not just to vindicate the rule of law, but also to vanquish political foes, will eventually corrupt our capacity for republican self-government.
Again, it took Bill Clinton to teach liberals the dangers of independent counsel statutes. Maybe next time liberals cheer on a prosecutor pursuing their political foes, they’ll think of Hillary Clinton and take a step back from the abyss.
Adam J. White is a research fellow at the Hoover Institution.
