As is usually the case in any proceeding where Trey Gowdy is present, an exchange between the South Carolina representative and FBI director James Comey, testifying in an oversight hearing before the House Judiciary Committee, stands out of the hours of futile verbal sparring as one moment of clarity and consequence.
Asked by Gowdy what Hillary Clinton would have had to do to warrant FBI prosecution over her illegal use of a private server and subsequent mishandling of classified information during her tenure as Secretary of State, Comey outlined a two-step process which apparently guides his agency’s decision to file charges.
According to Comey, not only must the person under investigation prove “beyond a reasonable doubt” their awareness of the unlawfulness of their conduct, which he connected to the legal concept of general mens rae, but the agency must be able to find precedent of similar cases which were prosecuted since, according to the FBI director, criminal justice is “all about prosecutorial discretion.”
Comey’s understanding of the machinations of the justice system is as disturbing as the tone with which he explains them. With an air of patient condescension, like a parent enlightening a child ignorant of his follies, Comey explains that he sees his role, and that of his investigating agents as arbiters, not enforcers, of the law.
Rather than look to an interpretation of events which could be constructed using available evidence, the FBI apparently makes abstract psychological rationales the emphasis of investigations. As if this imposition of their own lens of interpretation over the suspect’s weren’t enough, the FBI then goes a step further in exerting itself over the course of justice by making judgments of prosecutorial discretion, which, linguistically they have no right to since the FBI’s role is not as prosecutor.
Again, fundamentally, their actions are driven by discretion. Comey’s revelation suggests the FBI is less concerned with the empiricism of a case and more with whether there is precedent which suggests it can be successfully prosecuted.
These are not the actions of an agency which operates within a system of blind, egalitarian justice; these are the actions of a sports team that builds up a lead then performs only to the level necessary to defend it in order to protect their winning record.
Worse, it is an attitude which is directly contradictory with another defense which Comey offered up for his agency’s decision to not prosecute anyone involved in Clinton’s scandal kerfuffle:
Comey asserts that it is not the job of prosecutors to determine whether someone is lying. This is directly contradictory with Comey’s assertion that, to warrant prosecution, Clinton would have had to prove beyond a reasonable doubt that she was aware of criminal wrongdoing in her actions.
After setting up discretion as a standard for interpreting statutes to such a degree that it is as important an element in determining whether a case goes to prosecution as the actual content of the statue in question, Comey then effectively abrogates his agency’s responsibility for failures in judgment.
This is a dangerous precedent to set, not only because it cements the justice system in personal biases, but because it creates a loophole to wriggle out of responsibility when oversight is applied. It makes the law at once totally dependent on the discretion of officers, acting dually as investigators and prosecutors, and also completely independent of them. Under such a subjective system, it is impossible to even define one standard of justice, let alone prosecute all similar cases in a fair and equitable manner. Yet, as Comey’s testimony makes all to plain, it is the basic fabric of the modern culture of government operation.