In the space of 15 minutes, James Comey’s decision on Hillary Clinton produced an outpouring of fierce partisanship, not just on cable news but on Twitter.
For one side, Comey, a Republican, was a sellout who was part of a rigged system and caved to pressure to give Hillary Clinton the jail term she so richly deserves. For the other side, Comey decimated the trumped-up charges but went beyond the bounds of an FBI director’s job by blasting her bad judgment in front of the cameras.
It’s true that prosecutors don’t usually do that, but as Comey said, this is an extraordinary case that demands transparency.
And anyone (say, journalists) who didn’t paint the FBI chief as a villain or an angel was trashed along with him.
Here’s a quick look at some of the insta-punditry.
On the right, National Review’s David French—the guy who seriously contemplated a third-party bid to stop Donald Trump—said this:
“Rarely have 30 minutes of television so perfectly encapsulated the decline and fall of the rule of law and the extraordinary privileges enjoyed by America’s liberal elite. After listing abuse after abuse — and detailing lie after lie — Comey declared that ‘no reasonable prosecutor’ would prosecute Hillary for her obvious and manifest crimes. It’s good to be a Clinton.”
Andrew McCarthy, a former assistant U.S. attorney who also writes for National Review, challenged Comey’s judgment:
“In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.”
Another conservative, John Ziegler, who was once aligned with Sarah Palin, offered a dissenting view:
“As a conservative, I know that I am supposed to believe that Hillary Clinton is the most corrupt human of all time and that she clearly committed crimes with regard to her private email server and classified information (after all, the conservative media has told me so and they are never wrong). However, I found FBI Director James Comey’s dramatic statement and decision on this matter, explaining why no charges will be recommended, to be worthy of praise.
Comey explained his position very clearly and without any obvious bias. He seemed to be extremely well-informed of the issues of the case. He made numerous statements condemning Hillary Clinton that could not have made his boss happy and which made it apparent, contrary to prior statements from Donald Trump, that ‘the fix’ was not in. His decision to not recommend an indictment seems based on facts, logic and precedent, just as any conservative should hope it would be, regardless of the subject.”
The mainstream media verdict, furnished here by the Washington Post’s Chris Cillizza, is that this wasn’t a great day for the Democratic nominee:
“Here's the good news for Hillary Clinton: The FBI has recommended no charges be brought following its investigation of the former secretary of state's private email server.
“Here's the bad news: Just about everything else…
“It's hard to read Comey's statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015.”
And a prominent New York Times piece is headlined, "FBI's Critique of Hillary Clinton Is a Ready-Made Attack Ad."
From the left, the New Republic’s Brian Beutler scolds Comey while recognizing the damage to Clinton:
“By all outward appearances, Comey’s statement was inspired less by a deep commitment to the public’s right-to-know than by a territorial instinct for bureaucratic turf protection: giving voice, perhaps, to FBI officials who feel the State Department ran roughshod over them; insulating the bureau from inevitable allegations that its investigation and attendant recommendation were fixed.
“The result is a public relations disaster for Clinton: Republicans will air footage of Barack Obama’s FBI director (a Republican, but an Obama appointee nonetheless) calling Clinton reckless on camera thousands and thousands of times between now and November.”
In the end, James Comey issued a non-legal indictment against Hillary Clinton, accusing her of recklessness in mishandling classified information while concluding that no criminal charges should be brought.
I am going to approach the subject as a former Justice Department reporter who has covered every special prosecutor’s investigation in recent decades—not as a partisan who either believes that Clinton did nothing wrong or that she should already be behind bars.
The key sentence in Comey’s announcement yesterday is that despite the evidence uncovered by the bureau, “our judgment is that no reasonable prosecutor would bring such a case.”
I don’t agree with that. The former federal prosecutor laid out layers of facts that could have supported an indictment. The gross negligence in using her private email to send classified information—in direct contradiction of what the candidate has claimed—could have amounted to one or more criminal charges.
I also believe there was a higher bar with Clinton as the target. That’s not to say that Comey succumbed to political pressure, as he insists he did not. But a decision to indict Clinton would have knocked her out of the presidential race. In that kind of circumstance, a close call goes to the high-profile target.
Much of the reaction turns on whether Comey’s reputation as a straight shooter—he was deputy attorney general in the Bush administration before President Obama tapped him for the FBI—carries sufficient weight. None of us has seen the voluminous evidence compiled by the bureau, culminating in Saturday’s interview of Clinton—days after that spectacularly wrong-headed meeting between her husband and Loretta Lynch.
Donald Trump wasted little time in tweeting: “The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment.” Of course, Trump anticipated the outcome by declaring the system rigged last week, and has said that her offenses are such that she shouldn’t even be “allowed” to run.
It’s no accident that Comey front-loaded his remarks with paragraph after paragraph of criticism before announcing that Clinton would not be charged.
Among other things, Comey blew away Clinton’s repeated insistence that she never sent nor received classified information. To wit:
“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is information that they were extremely careless in their handling of very sensitive, highly classified information.” And: “Even if information is not marked ‘classified’ in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”
In fact, the FBI found 110 emails in 52 separate chains that were classified when they were sent or received. And intent does not matter when it comes to bringing charges.
Comey did say he found no deliberate effort to destroy emails, beyond routine maintenance, but that some of those that were deleted will never be recovered.
And while the bureau uncovered no hard evidence that foreign entities had hacked Clinton’s private server, Comey said it was quite possible, and that the hackers could have covered their tracks.
Clinton’s campaign said it was “pleased” with the outcome and reiterated that using the private server was a mistake—though she spent months denying that after the New York Times broke the story last year.
By branding Clinton “extremely careless,” Comey has handed Trump, the Republicans and other Hillary detractors ample ammunition. Indeed, the RNC called the bureau’s findings “a glaring indictment of Hillary Clinton’s complete lack of judgment, honesty and preparedness to be our next commander-in-chief.”
It is, as I said, an indictment in all but the criminal sense.
As for any punishment, Hillary Clinton will not have to go to court. But she will be tried this fall in the court of public opinion.
Howard Kurtz is a Fox News analyst and the host of "MediaBuzz" (Sundays 11 a.m. and 5 p.m. ET). He is the author of five books and is based in Washington. Follow him at @HowardKurtz. Click here for more information on Howard Kurtz.