One month before FBI Director James Comey announced his recommendation not to indict Hillary Clinton based on her use of a private email server, I tried to assess the prospect of indictment based on analysis of the known facts and applicable statutory provisions.  I concluded that because the facts and law presented clear probable cause she had violated subsection 793(f) of the Espionage Act, any colorable argument not to indict would depend on the exercise of prosecutorial discretion.

I concluded that because the facts and law presented clear probable cause she had violated subsection 793(f) of the Espionage Act, any colorable argument not to indict would depend on the exercise of prosecutorial discretion.

When someone is arrested for a crime, we do not expect police officers to make the final decision on whether or not charges are brought — rather, the role of an investigative agency such as the FBI is to gather evidence and pass it on to the prosecutor, who then makes the legal decision on whether to institute criminal proceedings.

In this case, Comey’s recommendation was preceded by Lynch’s announcement, in Aspen on July 1, that she would follow the recommendation of the FBI and career prosecutors in the Justice Department in an effort to avoid the appearance of bias.

And the New York Times reported the names of an assistant attorney general and deputy attorney general who would review the recommendation prior to its implementation by Lynch.

The involvement of…

Report a problem with this summary