When it comes to evaluating prosecutorial discretion, count me out -- my career for 45 years has been in the civil law. (Although I was fortunate to learn criminal law from a new and then very young Professor Alan Dershowitz.)
So I am reluctant to enter the prosecutorial debate between FBI Director James Comey and a former colleague of his, Andrew McCarthy, over just what kind of charges each would recommend be brought (or, in Comey's case, not be brought) against former First Lady, U.S. Senator, and Secretary of State -- and prospective Democratic presidential nominee, Hillary Rodham Clinton. There are strong arguments on both sides. That said, it might have been better for someone further up in the chain to make the decision -- such as a federal grand jury.
I do believe that Director Comey is being truthful when he swore that this was his (and his senior FBI investigators') decision alone, with absolutely no input from the Department of Justice or the White House. Had there been some dissent in the FBI's ranks from Comey's recommendation, there would have been some publicly announced resignations by now. And there has been none.
So Director Comey and his senior staff gave Attorney General Lynch and President Obama -- to say nothing of Hillary Clinton -- a huge gift, all wrapped up in the ostensible independence which they had promised to extend to him. But the FBI's decision, and the unseemly haste with which AG Lynch accepted it and closed down the investigation, still leaves unresolved a major conundrum.
A uniquely American conundrum.
The conundrum is just this:
1. Director Comey's press conference, which he self-organized to announce his decision, eviscerated Hillary Clinton's credibility (if indeed she had any shreds remaining). Just have a quick look at this expertly prepared video from the folks at Reason TV:
2. And as he admitted during his appearance before the House Government Oversight Committee this morning, any employee of his at the FBI who treated classified material the way that Hillary Clinton did through her unsecured private email server in her basement would face (among other sanctions) a loss of his or her security clearance. (Would you like to read the emails that went through Hillary's unsecured server? Just click here.)
3. Indeed, as the article just linked mentions, the State Department has now resumed its disciplinary inquiry into the handling of emails by Secretary Clinton and her staff (which was suspended to allow the FBI to complete its probe).
4. So as a former employee of the State Department who is still subject to its discipline, Hillary Clinton could lose her top-secret security clearance (along with her closest colleagues -- whom she might, if she is elected President, have liked to appoint to the National Security Agency, or similar jobs where top security clearance is a must).
Thus we come to the conundrum. Presidential candidate Hillary Clinton could (and by all rights should) lose her security clearance. (President Obama, however, could order it reinstated.)
Indeed, due to the ultimate power of the office, if elected President of the United States and commander-in-chief, Hillary Clinton could through executive order reinstate her own revoked security clearance, as well as that of any of her colleagues whose clearances had also been revoked.
The irony -- and heart of the ultimate conundrum -- is thus this. Despite the fact that the President of the United States can by executive fiat bestow and restore security clearances, it is the voters of the United States who will decide who will be the next US President.
So by deciding whether or not to make her the next President, the voters will at the same time be resolving the conundrum of whether or not, in their judgment, Hillary Clinton is qualified to be entrusted with top-secret data and information.
In other words, the ultimate decision as to Hillary Clinton's future ability to work in a meaningful capacity for the government is exactly in the hands of those who should have it. May they exercise their judgment wisely.