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Young lawyers become prosecutors because they want to be the good guys ... Young prosecutors who make it a career begin to see themselves as members of a kind of warrior priesthood, paladins of light in an ethically murky and sometimes blackly malign world.
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As a federal prosecutor, you are empowered to hunt those suspected of crime, but you are obligated to wield the immense resources at your disposal with restraint and in strict accordance with the rules. You are granted many tools to unearth evidence, but you must analyze what you find dispassionately. While an investigation is ongoing, you may not speak about its details publicly, no matter how high-profile the target and how intense the interest of the public, the press, or elected politicians.
You are commissioned to prosecute the guilty, but may not ethically subject anyone, however dodgy you personally may think them, to the risk of criminal conviction unless you believe the evidence proves guilt beyond a reasonable doubt. Therefore, if at the close of an investigation you indict, you announce the fact and thereafter do your talking in court, not on the courthouse steps or in private leaks to reporters.
If the evidence you collect does not merit indictment, you don’t proceed. Then, whatever your personal feelings about that may be, you say nothing, or at most make an unadorned announcement of the fact. Your job is to prosecute crime, not to make public assessments of personal character.
In short, the job is about justice. It’s not about you.
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Prosecutors can be heroes. But it is the self-abnegating heroism of the warrior-monk, not the self-promoting heroism of the solo knight errant who rescues maidens and slays dragons in the hope of having bards compose ballads extolling his fame. Unsurprisingly, however, people drawn to prosecution by the promise of action in the service of virtue can be seduced into seeing themselves as the second kind of hero.
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One of the risks of becoming a career prosecutor is that, because you are so often in the right and so often confront people who obviously did wrong, in time you can begin to mistake the perpetual obligation to be right with inevitably being right. And as one rises in rank, filling offices in which one commands the resources and speaks with the voice of the United States Department of Justice, the deference that comes with such roles is immense.
It requires great discipline, deep self-awareness, and a strong measure of humility to keep remembering that the job is about justice and not about you. And that doing the job means following the rules, formal and informal, of the prosecutor’s code, even if doing so may seem unwise to you personally in the heat of the moment.
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Comey’s first error, now somewhat obscured by later ones, was the choice to hold a press conference in July 2016 to announce and explain in detail the conclusions of the FBI about the investigation of Hillary Clinton’s email practices while Secretary of State, including its decision not to recommend an indictment. Note what I just said — “conclusions of the FBI.”
Comey candidly admitted at the beginning of his press conference that he had not consulted the Attorney General about the recommendations he was about to discuss or the opinions he was about render. And he knew perfectly well how aberrational this behavior was.
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Therefore, when Comey chose to march up to the microphones and provide a dog-and-pony show about the Clinton investigation, complete with his personal opinions about her “extreme carelessness” and the like, he committed two cardinal sins: First, he ignored the fact that, as FBI head, he was a cop, and no longer a prosecutor — that the Attorney General, not the FBI decides who gets indicted. Second, he ignored the norm that the Justice Department doesn’t “explain” decisions not to indict when the effect of the explanation will be to smear the person not indicted.
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The senior leadership of the Justice Department would surely have concurred in the recommendation not to prosecute, but would probably have issued a much more conventionally terse explanation of the decision. Instead, Comey got out front with a statement that simultaneously took credit for what, given the evidence, was the only sensible prosecutorial choice, while at the same time including enough tut-tutting disapproval of Secretary Clinton’s behavior to deflect the ire of Clinton critics on Capitol Hill and beyond from the FBI and James Comey, Esq.
But you don’t get to ignore chains of command or defining norms of prosecutorial behavior because you think it will make the FBI, or you personally, look better. The job is about justice, not about you.
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Comey’s later decision to send his infamous letter to Congress mere days before the election saying that some unexamined Clinton emails had been found on Anthony Weiner’s laptop, and that the Clinton investigation might be reopened depending on what was in them, was even less excusable. In that case, he violated yet another important Justice Department norm, which is not to comment on the status of pending investigations immediately prior to elections.
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Comey’s explanations of this decision are wholly inadequate. He poses his choice as between disclosure and “concealment,” as if there is some obligation on the part of federal law enforcement to update the public or congress on every unsubstantiated lead in an investigation. But the norm is precisely the reverse. The Department and subordinate law enforcement agencies like the FBI don’t comment on the status of investigations until they are complete and they don’t comment on unsubstantiated leads at all. Particularly not less than two weeks before an election in which the subject of an investigation is a candidate.
[N.b. Comey likely gave this notice because he was being threatened by
pro-Trump leakers, although of course his aim could still then be to preserve his own/the FBI's reputation.]
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Comey’s real reason was the worry that, if he had not disclosed before the election and something important was found on the laptop, then he would have been criticized by Republicans for hiding important information. To which the only possible response is — tough! Either disclosure or non-disclosure of uncorroborated allegations about a candidate can affect an election. The Justice Department policy against disclosure was created with full understanding of that dilemma. But it enjoins disclosure because only nondisclosure protects a candidate — like Hillary Clinton — whose electoral prospects will definitely be damaged by the release of information that may in the end prove baseless.
The mission of the Department of Justice is to convict the guilty, yes, but also to protect the innocent. Another part of its mission is to ensure that the process of winkling out truth does not warp the democratic process. If you work in the Department of Justice, or for its subordinate agencies, then no matter how high you climb, the job is still about justice. It’s not about you.
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Rod Rosenstein has been sharply criticized, and not without reason given the timing, for writing the memo about Comey’s errors that Trump used to justify firing Comey. But everything in the Rosenstein memo — the facts and the judgments — was correct. Comey should have been fired. The only thing that makes his firing remotely controversial is that Mr. Trump sacked him for an unwillingness to do wrong in the future, rather than for the wrongs he’d done in the past.
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Jim Comey is an honest man. Or at least as honest as any inevitably flawed human can be. But his basic honesty comes with two intertwined flaws. First, he knows he is honest, and on balance probably more honest than many people in public life. And that leads to a level of sanctimony dangerous in a man granted great public authority.
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Second, although Comey is honest, he also has an irrepressible need to be seen as honest, indeed as more honest, and more forthrightly, courageously honest than anybody else. He thirsts, it would seem, to be publicly acclaimed as the the spotless hero of his own saga. And that is an especially dangerous trait in a law enforcement official.
