James Comey shows our criminal justice system works as intended

James Comey shows our criminal justice system works as intended
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We know former Secretary of State Hillary ClintonHillary Diane Rodham ClintonDershowitz: 'Too many politicians are being subject to criminal prosecution' The 13 Republicans needed to pass gun-control legislation Democrats spar over electoral appeal of 'Medicare for All' MORE transmitted classified information on her personal email server but faced no criminal charges, with her actions declared by then FBI Director James ComeyJames Brien ComeyHouse Democrats seeking Sessions's testimony in impeachment probe Justice OIG completes probe on FBI surveillance of ex-Trump campaign aide Aggrieved Trump rips Dems for 'sad' impeachment effort MORE as not worthy of prosecution. His deputy Andrew McCabe was later found by Justice Department Inspector General Michael Horowitz to have had unauthorized media contacts and then to have lied about them to investigators, and he was fired but suffered no criminal exposure. Now it is reported that Comey himself has been found by Horowitz to have shared government memos containing potentially classified information with The New York Times, yet the Justice Department does not intend to charge him with a crime for it.

Is this the Washington establishment protecting its own? Is this, as now advanced by some on the right, a conspiracy to shield the enemies of President TrumpDonald John TrumpHarris bashes Kavanaugh's 'sham' nomination process, calls for his impeachment after sexual misconduct allegation Celebrating 'Hispanic Heritage Month' in the Age of Trump Let's not play Charlie Brown to Iran's Lucy MORE? Are our senior government officials simply above the law that us mere citizens of this nation remain subject to? The answer is no. While it may appear confusing and unfair to many Americans, this is really the criminal justice system functioning the way it was intended.

A basic tenet within our system is that prosecutors wield discretion, recognizing that with limited resources there is no way every potential violation can be prosecuted. This prosecutorial discretion is not absolute or subject to exercise on a whim. There are factors set forth by Justice Department policy that must be considered in the decision whether to prosecute or decline a case. These include, among others, the nature of the offense, the quality of the evidence, the past history of the alleged perpetrator, and the likelihood that the behavior will occur in the future.


For certain crimes, a critical component of this prosecutorial analysis is the question of intent. Actions can be the result of poor decision making, negligence, or mistake, yet they may not rise to the level of criminality if the perpetrator did not willfully violate the law. Whether a prosecutor thinks the evidence exists to prove intent is a judgment call that must be made on a case by case basis. That is another reason, when it comes to federal employees, that misconduct may result in disciplinary options up to and including termination but still not end with any criminal charges.

Then there is the question of whether political ramifications should have an impact on whether to bring charges. Prosecutors and officials within the Justice Department are supposed to make these decisions without regard for their personal politics. But that does not mean the political fallout of a high stakes prosecution can be completely disregarded. When Justice Department officials at the highest levels must grapple with the question of whether to charge a Cabinet secretary, a senior FBI official, or other top ranking individual, they know full well their decision will be heavily scrutinized by the public for political bias. This likely means in close calls the decision leans in favor of not bringing a criminal case.

Thus, as it turns out, not every wrong committed or every instance of misconduct can or should become a criminal matter. Many were furious that Clinton never faced charges, convinced that the combination of President Obama, former Attorney General Loretta Lynch, and Comey managed to stack the deck in her favor. But the reality is that there were serious questions about whether prosecutors would have been able to prove that Clinton intentionally mishandled classified information. In the case of McCabe, there were legitimate factual issues around whether McCabe had authority to make certain contacts with the media and whether his statements to investigators were lies or instead legitimate efforts to correct the record. In a close call and with all these factors to consider, the system rightfully found in favor of not pursuing charges.

As for Comey, it is difficult to understate the damage his actions have had on public confidence in the FBI and the criminal justice system. If he had any legitimate concerns about the actions of Trump, there were multiple options for appropriately reporting those concerns either internally within the Justice Department or to Congress. He chose instead to improperly take memos he had prepared in detailing his conversations with Trump, which may or may not have contained classified information but were clearly government property, and leak them to The New York Times. His cynical goal of triggering a special counsel appointment succeeded in giving us the ordeal that was the Russia investigation by Robert MuellerRobert (Bob) Swan MuellerFox's Cavuto roasts Trump over criticism of network Mueller report fades from political conversation Trump calls for probe of Obama book deal MORE.

Horowitz has impeccable credentials as a principled and nonpartisan public servant and, for full disclosure, he was my mentor and law partner before his return to government service. While his report has yet to be released, any findings he makes against Comey or others should be taken very seriously. However, that said, any findings of misconduct or even of potential legal violations may not necessarily translate into a criminal case based on the many factors and considerations that have to go into making charging decisions. Far from being a conspiracy or a defect within our criminal justice system, this is exactly the way the process should work.

Joseph Moreno is a former federal prosecutor with the Department of Justice and a United States Army combat veteran. He is now an attorney based in Washington. You can follow him on Twitter @JosephMoreno.