Was James Comey a Special Prosecutor?, by Thomas A. Barnico

by Guest Blogger — Saturday, Apr. 15, 2017

Election losses bring calls for blame, and FBI Director James Comey has led the early returns. Critics continue to charge that the FBI committed errors in its investigation of Hillary Clinton and that those errors contributed to her defeat. The FBI, they argue, outran its legal writ, particularly in its summer release of its recommendation whether to prosecute and its fall release of letters to Congress at the close of the campaign. After the election, the Department of Justice, Office of the Inspector General, announced that it would conduct its own review of the conduct of the FBI in the matter.

One charge against the FBI Director is that he exceeded his authority. But what were the source and boundaries of that authority, and were they subtly but crucially changed during 2016? And, if they were changed, by whom? As the debate continues, two neglected questions deserve review: (1) Did the actions or inactions of the President or Attorney General create, in effect, a “special prosecutor” or “independent counsel” in the Clinton matter, and (2) are the actions of the FBI better understood in this light?

The role of the independent counsel gained fame during Watergate. The role was immortalized by special prosecutor Archibald Cox upon his discharge by President Nixon. In the wake of Watergate, Congress in 1978 enacted the Ethics in Government Act (EIGA), which codified the role of the independent counsel and added several new features, including appointment by a special panel of federal appeals court judges and the requirement that the Attorney General have “cause” for the removal of the counsel.

The law was challenged on both separation of powers and Appointment Clause grounds. The principal claim against the law was that a person who exercises such prosecutorial authority must be appointed by the President, serve under his direct control, and be removable at his pleasure.   The Supreme Court upheld the law in Morrison v. Olson. Justice Scalia cast the lone dissent. In a passage that foreshadowed both the investigation and election of 2016, Scalia urged the Court to hold that “the President’s constitutionally assigned duties include the complete control over investigation and prosecution of violations of the law.”

After Morrison, officials in both parties came to fear the tender mercies of the Independent Counsel law. The law lapsed in 1992 but was modified and revived in 1994. Few mourned when it lapsed again by its terms in 1999.

In its place remains a highly discretionary power granted to the Attorney General under DOJ regulations to appoint a “special counsel” in cases where she determines that “criminal investigation of a person is warranted” and “investigation or prosecution . . . would present a conflict of interest” for DOJ “or other extraordinary circumstances” and “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

This was where things stood when the world first learned of the “private server” in Chappaqua, New York. In July, 2015, the FBI formally commenced an investigation “regarding the potential unauthorized transmission and storage of classified information” on Clinton’s personal e-mail server. Some members of Congress were wary of the DOJ and FBI roles. Thus, on October 28, 2015, Congressman Ron DeSantis (R- Florida), requested by letter that the Attorney General appoint a special counsel. On November 23, 2015, Assistant Attorney General Peter J. Kadzik replied. He wrote that such authority under current DOJ regulations “has rarely been exercised.” The AG declined to appoint a special counsel.

But questions about the impartiality of the Clinton inquiry arose again when former President Bill Clinton met with Attorney General Lynch on her plane at the Phoenix Airport. Sensitive to renewed concerns about her role, the Attorney General leaned away from the investigation, saying, according to the New York Times that “[t]he case will be resolved by the team that’s been working on it from the beginning.” But this tilt was apparently deemed imprecise as well: a Justice Department spokeswoman noted soon afterward that AG Lynch would be the person ultimately making the decision. Yet, in another attempt to clarify, the same spokesperson stated that the high-ranking officials directly under the AG would be following the recommendations of career prosecutors and the FBI.  Similarly, the AG told the Washington Post that she would “fully accept” the recommendation of the career prosecutors and the FBI on how to proceed with the matter. Judge Laurence H. Silberman of the D.C. Circuit, writing in the Wall Street Journal, recently summarized the confusion reigning at that point in the drama: “But instead of formally recusing herself and passing her responsibility in the proceeding to the deputy attorney general, she sort of half-recused herself by stating that she would rely on faceless professional prosecutors and FBI investigators.”

In July, the FBI director announced that he had completed his investigation and was “referring the case to the Department of Justice for a prosecutive decision.” He further stated: “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.” He then surprised many by revealing publically, and in some detail, the substance of his recommendation: that he did not believe that there were grounds for a federal prosecution.

The AG followed the FBI press conference with the following statement: “Late this afternoon, I met with FBI Director James Comey and career prosecutors and agents who conducted the investigation of Secretary Hillary Clinton’s use of a personal email system during her time as Secretary of State. I received and accepted their unanimous recommendation that the thorough, year-long investigation be closed and that no charges be brought against any individuals within the scope of the investigation.”

There matters stood until the bomb-shells of late October and November. As the world now knows, the FBI director wrote two letters to Congress merely days before Election Day. The texts of the letters made no reference to the AG or any other executive official outside the FBI. No one at DOJ was copied on the letter. Comey’s critics immediately decried the actions as unauthorized and imprudent. Their criticism has increased after the election. The critics, however, have neglected to consider whether the Director’s actions – including the letters – resembled more the actions of an independent prosecutor, rather than a subordinate investigator acting beyond his writ. For this reason, instead of questioning the FBI’s authority or prudence, critics should ask who in effect might have delegated to the FBI director a small but crucial measure of independence in the first place; who, in effect, enabled the official who believed he had the authority to send such letters at all.

Of course, the analogy between the FBI here and a special prosecutor is not perfect. The Director did not have all of the tools of the special counsel. He lacked access to the grand jury. He lacked authority to frame and sign indictments. He could not appear in court. Yet he was arguably delegated, in effect, the greater power in the circumstances here, the power granted to special prosecutors by the now-lapsed act, namely, “full authority to dismiss matters within his prosecutorial jurisdiction . . . if to do so would be consistent” with DOJ policy. When the Attorney General here suggested that she would accept the Director’s recommendation, she seemed to be conferring such a power to “dismiss” on the Director.  That is likely why her spokeswoman attempted a prompt clarification that the AG had retained ultimate authority to decide.

The AG had the power to reign in the Director, if she chose. Like an appointed special prosecutor, an FBI Director is removable at will by the President or AG. Lynch could have ordered Comey not to send the letters.   Once the letters were sent, she could have asked him to resign. Or fired him: “cause” is not required to fire the Director. But removal would have lit a political bonfire and thus undercut her very reason for creating distance between the AG and the FBI in the first place.   By virtually declaring her intended acceptance of the FBI recommendation before it was made, the AG in effect narrowed her existing options, broadened the Director’s, and compromised her power to remove him. He had become independent, in effect, if not in law.

This “tilt” – this delegation, sub silentio – seems not to have been apparent to all as the drama unfolded through 2016. For example, as the controversy and election raged through the fall, Yale Professor Akhil Reed Amar wrote in Slate on October 31, 2016, after the Director’s first letter to Congress, that “Our Constitution, our laws, and our legal traditions do not vest and never have vested the FBI director . . . with the power to decide who and who should not be prosecuted.” The Director, wrote Amar, failed to “understand the proper limits of his authority, formal and informal. . . . He is a statutory officer nested within a Justice Department that . . . answers directly to the president as a constitutional matter.”

True enough, but constitutional structure may not tell the whole story. In this case, the “informal” limits on the Director’s authority may have been blurred. Who holds “the power to decide” where the Director’s recommendation is accepted before it is made? If, as Amar argued, Comey mistakenly saw himself as “freestanding and independent,” he could be forgiven some measure of confusion: while conceding that the Constitution puts the President (and through him, the AG) “in charge of his own branch,” the Director may have seen scant evidence of “command” from the top at key junctures of the saga. Some perception of his own independence may have naturally followed.  At worst, the Director may have been, in Justice Scalia’s words in Morrison, “intentionally cut off from the unifying influence of the Justice Department,” leaving, as Scalia saw, “no one accountable to the public to whom the blame could be assigned.”

Despite his passing in February, 2016, Scalia’s dissent in Morrison hovered over the investigation and election throughout the year. Like Banquo, it reappeared at key junctures during the campaign – a presence palpable, but unseen – as Clinton supporters objected to the independence of the Director. The dissent – powerful, pragmatic, eerily prescient – lived on through 2016, so vividly that one wonders: Could the real obstacle to seating Judge Garland on the Supreme Court have been that the chair was . . . still occupied?

More practically, the episode exposes a gap in current law and practice concerning special prosecutors. Current law permits, but does not require the AG to appoint a special prosecutor where she perceives a “conflict of interest” for DOJ “or other extraordinary circumstances.” But even when she declines to appoint an independent counsel, she may face an overwhelming urge to distance herself (and the President) from a decision whether to investigate and prosecute a current officer of high rank. And, feeling that urge, she may cast longing eyes toward the FBI. The FBI has a full complement of investigative expertise and tools, and is close at hand – within and subject to the direct control of DOJ.   Sometimes it is even headed by a former federal prosecutor. The temptation to delegate – however modestly, or informally — might be strong.

We know now how that desire may manifest. Like a member of a boat’s crew with one leg on the dock and one leg on the boat, an AG may learn that the initial distance straddled can increase without warning, with unplanned results.

Thomas A. Barnico teaches at Boston College Law School.

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