Comey hands the reins to the voters, not prosecutors
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FBI Director James Comey made his announcement last week that there will be no criminal charges recommended for former Secretary of State Hillary ClintonHillary Diane Rodham ClintonHillary Clinton to speak at Asian Americans and Pacific Islanders summit More than half of eligible Latinos voted in 2020, setting record Fox News signs Trey Gowdy, Dan Bongino for new shows MORE or anyone involved in the email server investigation.


Many have commented on the fact this action by an FBI director is unprecedented, and largely depending on which side of the political aisle one sits, you either cheered the decision or were outraged by it.

His statement listed a number of condemnations and criticisms of the former secretary of State and presumptive Democratic nominee.

So what happened?

Was this a case of two Americas, one for the rich and powerful who are above the law, and one for the rest of us?

There is a less cynical view and explanation of what possibly went into this potentially historic decision by the FBI director.

Comey is one of the more honorable and capable lawyers to have served the government. He is no political hack for anyone, and not one who is tone-deaf. It is quite possible something else was at play here that may have animated the various factors he considered to get to the ultimate decision against prosecution. And by this, I don't think there was any influence by the Obama-Lynch Justice Department or any impact from the totally inappropriate private meeting between the attorney general and former President Bill ClintonWilliam (Bill) Jefferson ClintonObama calls on governments to 'do their part' in increasing global vaccine supply China's emissions now eclipse the developed world — preventing climate protection Trump endorses Glenn Youngkin in Virginia governors race MORE.

Here is my take: Comey realizes that we are just four months away from a very crucial presidential election, in which not only is the executive branch up for grabs, but also the ideological balance of the U.S. Supreme Court for the next generation. One factor could well have been that he was not going to interfere with the direction of the democratic process this November, but lay all the facts in the most transparent way (even if they would have supported a charge for negligent mishandling of classified information), and let the American electorate decide. He valued the democratic process over the historic implication of criminal charges.

He is trusting the democratic process and the American people to have all the information and do as they wish. I am not saying it is the only factor, but probably was a real factor.

There are some parallels here to what Supreme Court Chief Justice John Roberts did just four years ago in the summer of 2012, in the so-called first ObamaCare decision where he went through what many legal experts called interpretational gymnastics to avoid striking down President Obama's signature healthcare legislation. Even Justice Anthony Kennedy, often the swing vote in decisions, stated that the Robert's approach in the decision "amounts to a vast judicial overreaching."

Roberts stated in the opinion that "it is not our role to forbid [ObamaCare], or to pass upon its wisdom or fairness." He wanted to let the American people decide if they wanted to keep the legislation in the then-upcoming presidential election — where Obama was standing for reelection — or if they wanted it to fall with the election of a different president. Some decisions, the chief justice said, "are entrusted to our nation's elected leaders, who can be thrown out of office if the people disagree with them."

Did this philosophy also factor into Comey's decision-making process? Very likely. It is not a criticism. Indeed, it is a much less cynical way to view it.

It can be argued that both of these great legal minds, who have committed their careers to public service in the administration of justice, have put the democratic process above their own decision-making powers.

That isn't to say that either of their decisions is immune from criticism. Indeed, many have and will continue to criticize both of these momentous decisions. Some argue that Comey and Roberts punted when they were entrusted by our institutions of justice to exercise certain powers.

These were not political decisions, as some may argue, but likely ones that respected the political process over the established process.

We know how the 2012 elections turned out after Chief Justice Roberts's decision in ObamaCare. What we don't know yet is how Director Comey’s decision will be viewed by history. We won't know that until the November 2016 elections. If presumptive Republican nominee Donald TrumpDonald TrumpProject Veritas surveilled government officials to expose anti-Trump sentiments: report Cheney: Fox News has 'a particular obligation' to refute election fraud claims The Memo: What now for anti-Trump Republicans? MORE wins, the decision will be largely forgotten. If Hillary Clinton wins, around one-half of the country will continue to be highly critical.

Delrahim is a former deputy assistant attorney general at the U.S Department of Justice and the former chief counsel to the U.S. Senate Judiciary Committee.