Justice for all?



07/11/16 05:50 PM EDT

On July 5, FBI Director James Comey announced that the bureau would not be recommending criminal charges against Hillary Clinton in connection with her use of a private server and mishandling of government emails. Attorney General Loretta Lynch then issued a brief statement that the investigation was now closed. Given the director’s devastating condemnation of the former secretary of State’s conduct, it is not surprising that many Americans were puzzled, frustrated and angry at his recommendation.

The FBI is charged with investigating possible violations of federal law and presenting evidence to federal prosecutors, who in turn decide whether the evidence is sufficient to charge criminal wrongdoing. In our government structure it is the attorney general and federal prosecutors who decide whether to prosecute a case, not the FBI director.

Comey’s press conference was extraordinary for this and other reasons. In order to protect the integrity of an investigation and the reputation of innocent people, investigators customarily turn over their evidence to prosecutors privately, sometimes with a recommendation, sometimes with no recommendation. Admittedly this was an unusual case with extraordinary public interest. The director, however, could have easily had this press conference immediately following a discussion with, and decision by, prosecutors whether they intended to pursue charges. Public curiosity may have been served by the timing of the director’s press conference, but it is hard to see how justice was served.

The decision to bring criminal charges against an individual is always based to some degree upon a prosecutor’s judgment and discretion in weighing the evidence and assessing the facts to the law. Because of this discretion it is not possible or fair to judge Comey’s recommendation based solely on his press conference and his recent congressional testimony. For this reason it is important to know whether the attorney general and senior DOJ prosecutors reviewed the evidence collected by the FBI before the Justice Department closed the investigation.

The FBI director has dedicated most of his professional life to the service of others. However, his statement that no reasonable prosecutor would bring charges in this case was unfortunate and unnecessary. The director in essence placed himself into the role of the prosecutor. Perhaps that was inevitable
following the attorney general’s announcement she would abide by the FBI’s findings and recommendations. Unfortunately, unless prosecutors independently reviewed the evidence, there is truly no way to confirm that a crime has not been committed here, and no way to check the discretion and decision-making of the director.

It appears that in this case the FBI director led the investigation, collected and weighed the evidence and in essence made the decision not to bring charges against Clinton, who is now the presumptive Democratic presidential nominee. This concentration of power in one office is dangerous, creates the potential for abuse and establishes a dangerous precedent. The attorney general is scheduled to testify this week before Congress and hopefully will inform the American people whether senior DOJ prosecutors carefully reviewed the evidence and applied the facts to the law before deciding to close the case.

Was justice done here? If prosecutors have not done their job, we likely will never know whether our justice system is equal for all.

Gonzales is the former U.S. attorney general and White House counsel in the George W. Bush administration. Presently he is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.

http://thehill.com/opinion/op-ed/287292-justice-for-all