A Call to Right Comey's Wrongs

Nov 9, 2016

This op ed by Congressman Collins first appeared in The Hill on November 9, 2016.

On Oct. 28, Republicans welcomed FBI Director Comey’s decision to reopen its investigation of Secretary Clinton and for the opportunity to see justice finally run its course.

When Comey closed the inquiry nine days later, we were confounded because the evidence of Clinton’s wrongdoing is stronger than ever. To some extent, the timing of these announcements and the fact that the FBI’s actions can cut both ways politically can be set aside. However, the damage done by the FBI’s ultimate refusal to hold Clinton accountable for—in Director Comey’s words—her “extremely careless” behavior cannot.

Legally, Secretary Clinton’s perpetual mishandling of classified information is a federal offense. She maintained a private, unsecured email server and exchanged classified material over personal email. Now, we’re learning that she even gave individuals without security clearance access to sensitive information, apparently, in the case of her maid, as a matter of convenience.

When I questioned Director Comey in a Judiciary Committee hearing, he missed the fact that whether Clinton did these things with the intent to do harm is irrelevant under the law. We trusted her to protect highly classified documents, and she failed enthusiastically. Clinton jeopardized our national security, and my fellow service members often remind me that if they treated classified information as recklessly as the former Secretary of State, they would be behind bars.

The FBI’s failure to seek information critical to this investigation—even as troubling information continues to come to light, as with the Anthony Weiner development—and failure to act on the evidence it did have are frustrating to people across the country. The problem here is not only the appearance of political favoritism and the implication that different laws (or no laws) apply to the political elite. The problem is that when the FBI and Department of Justice play into Clinton’s sense of entitlement as a political actor by refusing to fully investigate her crimes, they create actual inequality under the law.

Ironically, the FBI’s decision to close the investigation prematurely means that Congress and the American people are kept in the dark about the extent of the damage being done by Secretary Clinton’s security breaches. We don’t yet know the magnitude of Clinton’s crimes precisely because she is no longer being investigated for them.

The FBI has, therefore, set a dangerous precedent for others who would mishandle sensitive information out of carelessness or malice. The story of the Clinton investigation is one of senior law enforcement officials failing to investigate and prosecute serious crimes. The moral of this story is that the option of a “Clinton defense” is now in play—the FBI and DOJ have invited the very people charged with stewarding classified material to plead ignorance and sloppiness in matters of national security. Guarding our nation’s most sensitive information is a privilege, and the door to abusing that privilege is now open wider than ever.

If we think that Americans don’t realize this, we are mistaken, and if we think that the lesson is lost on our enemies, we are foolish.

Perhaps the most troubling consequence of the FBI’s botched investigation is that people’s loss of confidence in our justice system is at least somewhat justified. By Director Comey’s own assessment, Clinton acted recklessly, and she has felt no legal ramifications.

At the same time, Americans have inherited a new political paradox: If the justice system fails to prosecute cases like Clinton’s going forward, it further jeopardizes national security. On the other hand, if the FBI chooses to prosecute similar cases in the future, it reinforces the inequality of the political elite and the average American under the law. As a lawyer and member of the U.S. Air Force, I reject both options and suggest a third.

Throughout this investigation I have demanded the FBI account for Secretary Clinton’s actions as well as its own handling of this case. Numerous questions about the investigation itself remain unanswered, and I join my colleagues on the Judiciary Committee in calling for those answers from the FBI. I also renew my call for the Attorney General to do what she should have done from the beginning—appoint an independent special counsel to investigate Clinton’s actions. The statute of limitations on federal crimes does not expire at end of an election cycle.

The FBI may have concluded its investigation of Clinton’s email disaster, but it is crucial for us to right the wrongs stemming not only from Clinton’s conduct but from the FBI’s flawed approach to this investigation. Every American’s equality under the law must be reaffirmed in order for the laws governing national security to remain effective. Only when the legal playing field is level and when our public servants are held accountable for actions they take on our behalf can Americans regain the confidence that our justice system is the most enlightened and impartial in the world.