COMEY’S CASE STUDY

The two special counsels separately investigating the improper possession of classified documents by President Joe Biden and former President Donald Trump have difficult tasks in determining whether to recommend criminal charges against the two men.

Fortunately, they have a good example they can follow: THEN-FBI Director James Comey’s decision in 2016 not to recommend charges for Democratic presidential nominee Hillary Clinton.

In case that episode has mercifully escaped your memory, here’s a recap: When Clinton served as secretary of state, she used a private email server in her home to handle official business, despite federal records rules. The FBI was charged with investigating the matter, and then-attorney General Loretta Lynch announced that she would accept whatever recommendations Comey and his team made to avoid any appearance of partiality.

Comey’s decision not to recommend criminal charges for Clinton brought howls from Republicans. It was suspect, given the significant amount of evidence that she had mishandled classified materials. But it was surely the correct political decision for all concerned. Comey released that evidence to the public and criticized Clinton for her handling of the emails, giving the American people the knowledge they needed to assess for themselves her indiscretion. This meant that the public — not the courts — would decide Clinton’s fate.

That is surely the best way forward in both the Biden and Trump cases. To the average person, Trump’s violation looks essentially the same as Biden’s. Indicting Trump but not Biden would create a political uproar. But Biden’s status as a sitting president precludes him from charges, per long-standing Justice Department policy, and naming him as an unindicted co-conspirator would also inflame the people. Looking to the law to settle what is essentially a political dispute might be sound jurisprudence, but it would be detrimental to our democracy.

This is why both special counsels should follow the Comey precedent. They can thoroughly investigate the cases and publicly detail what they found. They can also note the degree of culpability for each man and then let voters decide how important these facts are as they decide whether to elect them in 2024.

Some might say this would violate the rule of law, but that’s not so. The fundamental basis for the rule of law is that it replaces the rule of people. People can be prejudiced, especially when their interests are at stake. James Madison highlighted the importance of this doctrine in Federalist 10, in which he wrote, “no man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment.” Similarly, no one who holds the fate of a presidential candidate in their hands is immune from that temptation to act in the interests of their party, regardless of their status as an “independent” special prosecutor.

This is especially true in these cases, which are essentially process crimes. No one contends that either man intended harm to the nation, nor has it been established that any harm

People rule in democracies.

resulted from the removal of classified documents from secure areas. It might be true that an average person caught in possession of such documents would go to jail, but it’s also true that such individuals have less need of such materials and live in less secure surroundings. Moreover, the threat of imprisonment can disincentive others from taking classified documents. But there’s little need to put a former president through the wringer to disincentivize future former presidents from doing the same thing.

Establishing a “Comey rule” would not mean that former presidents are above the law. To borrow an example from Trump, if he shot someone on Fifth Avenue, the public interest in punishing him would be clear, and there would be no question over the prosecutor’s motives.

Similarly, if an investigation found, for example, that Biden used his son Hunter as a cover to sell perceived access to the vice presidency (no such evidence has been found), then the public’s interest would override any political concerns of prosecution.

But that’s simply not the case in either case being investigated by the special counsels. In democracies, the people rule. The special prosecutors should present their cases to voters, and they can decide these men’s fates.