Don’t blame the FBI — Hillary Clinton was never going to be charged

With the exception of President Trump, few inspire otherwise rational people to erupt into vicious debate quite like Hillary Clinton. It is this juxtaposed sentiment of admiration and vitriol that led to the three reasons the FBI’s investigation into the former secretary of State’s alleged use of a personal server was never going to result in charges. 

First, the Democrats didn’t want her charged. The FBI should be, and is, apolitical. In fact, it would be bad form for a president to appoint a political ally to lead the FBI. However, this nonpartisan gesture is disingenuous given the appointment of the attorney general (AG) is not made with the same care. The FBI is the investigative arm of the Department of Justice (DOJ) and the AG is the head of the DOJ. Thus, FBI investigations do not result in federal charges without the approval of the DOJ and, by extension, the AG. 

{mosads}That is why the June 2016 meeting between former President Clinton and former AG Loretta Lynch on the tarmac in Phoenix was so significant. It was unconscionable that the AG would meet with the spouse of someone under federal investigation in such a manner. Though touted as an unexpected meeting, that is inconceivable. The two security details, Lynch’s and Clinton’s, would have learned during their security advance of the other being on the tarmac about the same time. This would result in prior notification to the protectee. Finally, assurances by the AG that their discussion was unrelated to the investigation is irrelevant. 

In the words of former Louisiana Gov. Earl Long, “Don’t write anything you can phone … Don’t nod anything you can wink.” Lynch’s willingness to look Clinton in the eyes, let alone entertain a 30-minute conversation, was sufficient for the public to anticipate the outcome. 

When the tarmac meeting became public, the AG claimed she would distance herself from the investigation and support then-FBI Director James Comey’s prosecutorial recommendation. Privately, however, Comey would have known the AG did not support charges, and defying the DOJ was not an option. Unlike Comey’s decision to buck the White House when he was deputy AG, there was no constitutional issue at stake to compel disobedience, and there was plenty of reason to comply.

A breakdown in the relationship between the FBI and the DOJ would have consequences no reasonable FBI director would accept. Defying the will of the AG could result in punishment that could affect thousands of cases across the country. The AG could shuffle resources to other agencies, raise thresholds, change priorities, slow or deny approvals (particularly relevant in public corruption cases) — all kinds of bureaucratic maneuvering unlikely to make headlines but guaranteed to make an FBI Director miserable. The risk was too high and the consequences to the American people too dire to recommend charges. 

Second, line attorneys at the DOJ did not want to charge Hillary Clinton. Some may disagree on the merits of the evidence against her, but that is true of any investigation. The quantity and quality of the evidence is only part of the decision to prosecute. The lawful exercise by prosecutors to choose not to prosecute despite sufficient evidence is known as their “prosecutorial discretion.” And, prosecutors prefer the dog tied to the tree. The particular statute Hillary Clinton allegedly violated did not have a rich prosecutorial history, which meant she would likely go to trial. Comey was a DOJ attorney through and through before getting the FBI appointment. Based on the challenges with the statute and a prosecutor’s general aversion to risk, even FBI lawyers were never likely to recommend charges.

Third, the Republican elites were against charges. Hillary Clinton is a lightning rod that unifies the party’s different conservative factions. She is fuel on the fire every time she lands in the news, and prison would end her long-term usability. The only thing worse for Republicans than Hillary Clinton not being charged would be an acquittal. The political blowback would be catastrophic if she were seen as having been victimized by Republicans. With that, the idea that any jury would convict the former secretary of State without a single holdout, regardless of the evidence, is at least debatable. The absence of investigative action post-presidential election, despite promises to the contrary, is evidence Republicans prefer Hillary Clinton right where she is.

The decision to prosecute has always fallen outside the scope of the FBI. Regardless, the FBI has become an expedient political scapegoat to distract from the truth. Have mistakes and poor judgment been made at the executive level of the FBI? Absolutely. Arrogance has a way of colliding head-on into a heavy dose of humility. However, the agents assigned to the Clinton investigation and the myriad others, by and large, are men and women who sacrifice daily to preserve the safety of the American people and uphold the Constitution. Despite the attacks, their tradition of “Fidelity, Bravery, and Integrity” remains constant, even when those who shouldn’t, do lose faith with it.

Jeff Cortese, a financial crimes manager in the private sector, is the former acting chief of the FBI’s Public Corruption Unit. Before his 11-year career with the bureau, he worked as a dignitary protection agent with the U.S. Capitol Police and served on the security detail for the Speaker of the House.