By Alan Dershowitz
FBI Director James Comey's statement recommending against prosecuting Hillary Clinton was unusual in several respects. First, it is not generally regarded as the job of the FBI to make judgment calls about whether or not to prosecute. Those judgment calls are supposed to be made by prosecutors. The job of the FBI is to investigate the facts and lay them out as objectively and completely as possible so that prosecutors can exercise their discretion and judgment.
Although technically the attorney general in this case could exercise independent judgment, she is unlikely to do so, having already said she would defer to the FBI's recommendation. So in this instance the FBI found the facts, applied the law and exercised prosecutorial discretion. A strange role for an investigative agency!
Second, it is unusual for an FBI director to express opinions such as the kind that Comey made in his statement. He said that Clinton had been "extremely careless" in her handling of sensitive material. That is not a legal concept, but to lay people it could sound very much like "gross negligence," which is one of the statutory criteria for bringing a prosecution.
Normally when a prosecutor declines prosecution, all that is said is that there will be no indictment. It is rare, though not unprecedented, for a prosecutor to then go on to excoriate the object of the investigation. The question should be asked: Is that a proper role for the director of the FBI?
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