How the FBI director followed in Chief Justice Marshall’s footsteps

Political speculation has, not surprisingly, swirled around the FBI’s investigation into Hillary Clinton’s use of personal servers for her emails during her tenure as secretary of State. The same can now be said of FBI Director James Comey’s disposition of the investigation. While chastising Clinton’s mishandling of secret and classified emails, Comey has recommended to the Department of Justice that it not pursue criminal charges in the matter.

Comey’s path is politically astute and finds precedent in the decision rendered by Chief Justice John Marshall two centuries ago in the case of Marbury v. Madison. Marbury is well known as the case that established the Supreme Court’s power to review federal statutes for their constitutionality. But Marbury also put Marshall in a politically difficult spot, and his response demonstrates, then as now, considerable political agility.

{mosads}The Marbury case arose out of efforts in 1801 by the administration of outgoing Federalist President John Adams to stack the federal courts with Federalist judges. After sound political defeat in the election of 1800 by Thomas Jefferson and the Democratic-Republicans, the lame-duck Federalist Congress passed the Judiciary Act of 1801, expanding the federal judiciary. Adams took the opportunity to nominate, and the Senate confirmed, numerous judges.

However, for the judgeships to take effect, official commissions had to be delivered to the new judges. Marshall (serving concurrently as chief justice and as Adams’s secretary of State) delivered many of the commissions, but not all — including the commission of one William Marbury, named by Adams as a justice of the peace in the District of Columbia. Marbury filed suit in the United States Supreme Court seeking (under the First Judiciary Act of 1789) a writ of mandamus directing the new secretary of State, James Madison, to deliver Marbury’s commission.

Marshall was faced with a political quandary. He believed that the delivery of Marbury’s commission was a mere ministerial deficiency and that, accordingly, Marbury had a legal claim to the judgeship. By the same token, Marshall realized that Jefferson’s administration was likely simply to ignore an order from the Supreme Court to deliver Marbury’s commission. That, in turn, would draw in question the very legitimacy of the Supreme Court.

Marshall’s opinion for the court struck a politically brilliant balance. It validated Marbury’s legal claim to the judgeship, explaining how the Jefferson administration had acted badly in failing to deliver Marbury’s commission. However, the opinion went on to hold that the First Judiciary Act’s extension of jurisdiction to file suit in the Supreme Court was itself unconstitutional. Specifically, the opinion held that the First Judiciary Act purported to extend the Supreme Court’s original jurisdiction beyond what was authorized in the Constitution. This, Marshall held, Congress could not do. Moreover — in the part of the opinion key to the court’s power of judicial review — the Supreme Court had the power to invalidate Congress’s unconstitutional statute.

Marshall’s opinion in Marbury handed the Jefferson administration a legal, but rather pyrrhic, victory. The Jefferson administration did not have to deliver Marbury’s commission, but Marshall’s opinion heavily chastised the administration for the choice it had made. It left any ultimate judgment against Jefferson and his administration to the political system and the election box. Finally, it assured the legitimacy of the Supreme Court above the fray of politics.

Comey faced a roughly similar quandary with respect to the Clinton email investigation, and extricated himself in a similar way. A decision to recommend charges would have garnered (just as the decision not to recommend charges has garnered) accusations of partisanship. Indeed, those charges might have been worse, as a result of Attorney General Loretta Lynch’s ill-advised decision to meet with former President Bill Clinton at the Phoenix airport. Lynch has announced her intention to defer to the FBI and line prosecutors on whether to prosecute Hillary Clinton. Thus, were Comey to have recommended charges, it was highly probable that Lynch would have had little choice but to pursue charges.

Instead, Comey’s decision not to recommend charges leaves the line prosecutors free nevertheless to recommend charges. Moreover, Comey’s statement makes clear that the decision not to recommend charges was not the result of Clinton’s utter blamelessness. To the contrary, Comey heavily chastised Clinton as having been “extremely careless.” He explained that a few emails discussed certain matters that were “Top Secret/Secret Access” and that, with respect to these matters:

“There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”

Comey also seemed to go a bit out of his way — noting that it was “not the focus of our investigation” — to strike a blow against Clinton in her administrative capacity at State, citing “evidence that the security culture of the State Department in general, and with respect to use of unclassified email systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.”

Taking a page out of Marshall’s book, Comey left ultimate judgment to the political system and the ballot box, and preserved as best he could the integrity of the FBI as an independent actor within the Department of Justice and the executive branch.

This piece was corrected on July 6, 2016 at 5:05 p.m.

Nash is professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.