Here is the column:
The same question might have been asked when Comey wrote his statement before actually speaking to the key witnesses. In fairness to Comey, even judges are known to draft opinions before oral argument. Both statements and opinions can be modified in light of new evidence before release. In a House Judiciary Committee hearing last September, Comey insisted that no decision (as opposed to no draft) had been made before Clinton’s July 2016 interview: “If colleagues of ours believe I am lying about when I made this decision, please urge them to contact me privately … All I can do is tell you again, the decision was made after that because I didn’t know what was going to happen in that interview.”
Of course, there were many at the time who questioned whether Obama administration Justice Department officials would truly pursue potential charges against Clinton with vigor and detachment. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sen. Lindsey Graham(R-S.C.) obtained transcripts from the U.S. Office of Special Counsel, a government watchdog agency that launched an investigation into whether Comey violated a federal law against government employees engaging in political activity.
In a highly controversial press conference, Comey announced that he would not refer charges while adding that Clinton and others were “extremely careless in their handling of very sensitive, highly classified information.” While I am inclined to accept assurances from Comey that he did not finally decide on charges until after reviewing all of the evidence, the details from the Clinton investigation hardly support a view of a robust and dogged effort in comparison to the type of investigation of people like Paul Manafort.
In pursuing Manafort, special counsel Robert Mueller has now enlisted an army of investigators, reached a cooperative relationship with staunch Trump critic New York Attorney General Eric Schneiderman, and actively pursued tax and financial dealings far afield of the original Russian collusion allegations. He also ordered a heavy-handed (and unnecessary) “no knock” search in the middle of the night on Manafort’s home.
The Clinton investigation looks like Club Fed in comparison. Clinton and her staff refused to cooperate with State Department investigators seeking confirm any damage to national security. Key laptops were withheld and only turned over after Comey’s staff agreed to destroy the computers after their review, despite the relevance of the evidence to congressional investigations. Comey then cut five immunity deals with key Clinton staff members, including former State Department staffer, Bryan Pagliano, who set up a server in Clinton’s home in Chappaqua, N.Y., and worked for her at the State Department.
Pagliano refused to cooperate after invoking his Fifth Amendment right against self-incrimination and destroyed evidence after being given a preservation order. Those deals raised the concern over a type of prosecutorial planned obsolescence, making a viable case less likely. Once again, the drafting of the Comey statement does not prove that Comey had made up his mind regardless of the evidence. In that sense, it is not conclusive proof as President Trump has tweeted of “a rigged system.” Given the political importance of the investigation and discussion on the campaign trail, Comey may have wanted to have a base statement ready in the system but still subject to change.
It is not the specific statement but the overall context of the investigation that raises obvious concerns over the relative levels of effort. The draft letter reflected a presumption that left the burden on others to shift. It is not necessarily a bad presumption in a system based on the presumption of innocence, so long as it is uniformly followed. However, when Manafort was awoken by a FBI search team in his bedroom recently, it seemed doubtful that a draft letter of exoneration is sitting in Mueller’s computer.
Just as we should resist the president’s interjections into the Mueller investigation, we should show equal concern over the independence of the Comey investigation. There is meaning in the Comey draft and it is worth finding out what that meaning may be, even it produces a “world of trouble.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.