By Jamie Gorelick and Larry Thompson – – – –
Jamie Gorelick served as deputy attorney general from 1994 to 1997 and is a supporter of Hillary Clinton. Larry Thompson served as deputy attorney general from 2001 to 2003 and signed a letter from a group of former Justice Department officials in Republican administrations calling for Donald Trump’s defeat.
The Justice Department has a proud history of enforcing the federal criminal law without fear or favor, and especially without regard to politics. It operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election. These traditions protect the integrity of the department and the public’s confidence in its mission to take care that the laws are faithfully and impartially executed. They reflect an institutional balancing of interests, delaying disclosure and public knowledge to avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.
Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.
When they take their vows and assume office, senior officials in the Justice Department and the FBI become part of these traditions, with an obligation to preserve, protect and defend them. They enjoy a credibility established by generations of honorable public servants, and they owe a solemn obligation to maintain that credibility. They are not to arrogate to themselves the choices made by the Justice Department and honored over the years.
As part of that obligation, they must recognize that the department is an institution, not a person. As its temporary custodians, they must neither seek the spotlight for their own advancement nor avoid accountability for the hard decisions they inevitably face. Justice allows neither for self-aggrandizing crusaders on high horses nor for passive bureaucrats wielding rubber stamps from the shadows. It demands both humility and responsibility.
As former deputy attorneys general in the Bill Clinton and George W. Bush administrations, we are troubled by the apparent departure from these standards in the investigation of Hillary Clinton’s email server. First, the FBI director, James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”
At the same time, Attorney General Loretta E. Lynch — nominally Comey’s boss — has apparently been satisfied with advising Comey but not ordering him to abide by the rules. She, no doubt, did not want to override the FBI director in such a highly political matter, but she should not have needed to. He should have abided by the policy on his own.
Events as they have played out point to the value of the department’s traditions. Having taken the extraordinary steps of briefing the public, testifying before Congress about a decision not to prosecute and sharing investigative material, Comey now finds himself wanting to update the public and Congress on each new development in the investigation, even before he and others have had a chance to assess its significance. He may well have been criticized after the fact had he not advised Congress of the investigative steps that he was taking. But it was his job — consistent with the best traditions of the Department of Justice — to make the right decision and take that criticism if it came. Department officials owe the public an explanation of how events have unfolded the way they have. There must be some recognition that it is important not to allow an investigation to become hijacked by the red-hot passions of a political contest.
As it stands, we now have real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation. Perhaps worst of all, it is happening on the eve of a presidential election. It is antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy.