FBI Director James Comey is now firmly in the driver’s seat of the Hillary Clinton email investigation, after Attorney General Loretta Lynch pledged she would accept whatever course of action his bureau and career prosecutors recommend.
Lynch’s influence will continue to be felt throughout the department, and her refusal to fully remove herself from the case ensures that she will continue to be briefed about its developments. Prosecutors within her department — not the FBI — will ultimately decide whether or not to press ahead with charges.
But her decision makes Comey the public face of the investigation. And his reputation as a well-respected but hard-nosed maverick might give Democrats some worry about the outcome of the probe, which is nearing its one-year anniversary later this month.
“Comey is the center of gravity on this thing,” said Ron Hosko, a former FBI assistant director and president of the Law Enforcement Legal Defense Fund.
“There is a growing expectation that we the public need to hear the FBI, Jim Comey version of whether or not charges will be brought,” he added. “There has probably been increasing recognition by her that that’s true, that she is viewed as — regardless of her prior reputation as an effective prosecutor — she’s now the head of Obama’s DOJ, a political position in a Democratic administration that is deciding on the prosecution or not of the leading Democratic candidate.”
Lynch on Friday succumbed to the intensifying public pressure on her following Monday’s private 30-minute meeting in Phoenix with former President Clinton.
Lynch maintained for days that the unplanned meeting was purely social and did not touch on the case against Clinton’s wife or any other legal matter.
But it nonetheless “cast a shadow over how this case may be perceived,” she conceded during a discussion at the Aspen Ideas Festival in Colorado.
As a result, Lynch announced that she would accept the recommendations of the FBI and federal prosecutors. The top prosecutor had already made the decision privately, she said, but felt compelled to make it public due to the growing backlash.
“This case will be resolved by the team that’s been working on it from the beginning,” she said.
“Supervisors always review matters. In this case, that review will be career people in the Department of Justice, and also the FBI will review it, up to and including the FBI director,” Lynch added. “And that will be the finalization of not just the factual findings, but the next steps in this matter.”
ABC News reported on Friday that Hillary Clinton could be interviewed by the FBI “in the coming days.”
In deferring to others, Lynch failed to go as far as some GOP critics had hoped. Multiple Republican lawmakers have said that she should completely remove herself and other political appointees from the case and instead appoint a special prosecutor.
“While I don’t have a role in those findings and coming up with those findings or making those recommendations as to how to go forward, I’ll be briefed on it and I will be accepting their recommendations,” she said.
The decision puts the spotlight squarely on Comey, a Republican who is widely respected by GOP lawmakers and known for a streak of independence.
Comey has clashed repeatedly with the White House since he took office nearly three years ago, on issues ranging from the use of encryption technologies to the ability to vet Syrian refugees coming to the U.S. and the existence of the so-called “Ferguson effect” on policing efforts.
He’s shown willingness to buck GOP leaders as well, such as a famous 2004 episode when he rushed to a Washington hospital to block the George W. Bush White House from renewing a warrantless wiretapping program while then-Attorney General John Ashcroft laid ill.
“He is a pro’s pro,” said Matthew Whitaker, a former U.S. attorney and head of the Foundation for Accountability and Civic Trust, a watchdog group. “And I think this takes the pressure off of him that whatever the FBI recommends will be followed, where before I am certain he would be concerned that there will be political interference from the attorney general.”
There’s still a chance that FBI investigators and Justice Department lawyers, who are working on the case together, arrive at different conclusions on how to proceed.
The FBI has a tendency to be more aggressive with cases, whereas prosecutors might be more reluctant to push a charge they are not absolutely certain will stick — especially if the next presidency might be at stake.
“I could easily envision a scenario in which the FBI concludes there is enough evidence to make a case, but the DOJ prosecutors decide that the case is too weak to risk the legal precedent,” Bradley Moss, a lawyer who handles national security and secrecy issues, wrote in an email to The Hill.
“The DOJ career prosecutors are truly the ones who are under the microscope at this point.”
In the federal case against former CIA Director David Petraeus last year, FBI officials reportedly pushed for him to be indicted on felony charges, but then-Attorney General Eric Holder downgraded them to misdemeanors.
Yet Comey is no shrinking violet. If he is ultimately overruled by officials within the Justice Department, that is unlikely to remain a secret.
Potentially incriminating news has “a way of getting out,” said Whitaker.
“I would imagine ultimately we will know how the investigation was conducted or whether there was interference from the political folks at the Department of Justice,” he added.
“But I don’t know whether it will be in time to have an impact in an election year.”