Did FBI director Comey exceed his authority?

FBI Director James Comey’s statement recommending against prosecuting Hillary Clinton was unusual in several respects. First, it is not generally regarded as the job of the FBI to make judgment calls about whether or not to prosecute. Those judgment calls are supposed to be made by prosecutors. The job of the FBI is to investigate the facts and lay them out as objectively and completely as possible so that prosecutors can exercise their discretion and judgment.

{mosads}Although technically the attorney general in this case could exercise independent judgment, she is unlikely to do so, having already said she would defer to the FBI’s recommendation. So in this instance the FBI found the facts, applied the law and exercised prosecutorial discretion. A strange role for an investigative agency!

Second, it is unusual for an FBI director to express opinions such as the kind that Comey made in his statement. He said that Clinton had been “extremely careless” in her handling of sensitive material. That is not a legal concept, but to lay people it could sound very much like “gross negligence,” which is one of the statutory criteria for bringing a prosecution.

Normally when a prosecutor declines prosecution, all that is said is that there will be no indictment. It is rare, though not unprecedented, for a prosecutor to then go on to excoriate the object of the investigation. The question should be asked: Is that a proper role for the director of the FBI?

Third, Comey used an unusual verbal formulation in discussing classified information. This is what he said:

“Only a small number of the emails containing classified information bore markings indicating the presence of classified information.”

He did not explain what he meant by the words “bore markings.” Does this mean that they were stamped “classified”? Or does it mean that there were indications within the text of the emails that would show that it was in fact classified? The confusion was exacerbated by Comey’s next sentence in which he said the following:

“But even if information is not marked ‘classified’ in an email, participants who know or should know that the subject is classified are obligated to protect it.”

Comey’s use of the words “marked classified” seems to suggest that there is a distinction between emails that were marked “classified” and emails that “bore markings indicating the presence of classified information.”

This use of different verbal formulations suggests that none of the emails were actually marked “classified.” I may be wrong in that surmise, but it is certainly suggested by how Comey used these different formulations.

Fourth, Comey went out of his way to say that even if there is no basis for criminal prosecution, there might be other sanctions that could be applied to all those who participated in email exchanges that contained classified material.

This statement suggests that several of Clinton’s most important aides may eventually be denied security clearance, which would prevent them from serving in sensitive positions in the government. The decision whether to grant or deny security clearance should be made at the relevant time, by the relevant authorities, not by the FBI in anticipation of future possibilities.

Putting aside these unusual aspects of the Comey statement, he was certainly correct in his ultimate recommendation. The evidence in this case, as he described it, would not have justified a criminal prosecution.

There is simply no precedent for indicting a former secretary of State for carelessness, even extreme carelessness. This is especially true when the former secretary is about to become her party’s nominee for president. Directors of the FBI should not be influencing the outcome of presidential elections unless there is a clear and unequivocal violation of the law.

In general, the principal of “lenity” — which requires doubts to be resolved in close cases against prosecution — applies even more strictly when the decision to indict would effectively deny the public the right to exercise its judgment about who should be the president.

So the bottom line is that Clinton will not be indicted, but the director of the FBI has issued a statement that may have a considerable impact on the upcoming election. This raises fundamental structural questions about the role of the FBI in investigating political figures.

Comey is an honorable man, an excellent lawyer and an experienced prosecutor. We must never forget that the building in which Comey works bears the name of one of his predecessors, J. Edgar Hoover. We must all ask ourselves the question whether we would trust another Hoover to make the kinds of decisions that Comey has made in this case.

If the answer to that question is “no,” then we must consider structural changes that would prevent a future J. Edgar Hoover from exercising the kind of power exercised by James Comey in this case.

Dershowitz is professor emeritus at Harvard University and author of “Taking the Stand: My Life in the Law.”