Again, Comey would have us see him, simultaneously, as the stalwart check on potential Justice Department corruption and the helpless slave of Justice Department direction. But he can’t be both. The simple fact is: Nothing obliged him to exercise prosecutorial discretion in the emails investigation. The FBI’s job was to investigate, not to decide whether the evidence was sufficient to support an indictment. If he was worried that Attorney General Loretta Lynch was conflicted, the upright move was to advise her to step aside — and to do it not at the end but at an earlier point, when it might have helped the FBI get out from under the irregular constraints her Justice Department was imposing on investigators. And a prosecutor’s conflict is not a basis for the FBI to appropriate her authority — Lynch had a deputy and other subordinates who could have acted as attorney general if her recusal was warranted.
More to the point, there was no need to say anything. There is no requirement that the FBI or the Justice Department ever announce that an investigation has been closed. The former director keeps asking, “What was I to do” under these difficult circumstances? The answer is: nothing. The government speaks in court, when a person is formally accused of a crime and has the full pallet of due-process rights to defend herself. Unless and until that happens, no one is entitled to know whether an investigation exists or what its status may be.
The public did not have the right to know what was happening in the Clinton investigation.