When James Comey announced his decision not to recommend the prosecution of Hillary Clinton for the misuse of classified information, it was not his first investigation of Clinton that ended without the filing of criminal charges. It was his third investigation of Clinton, and the second in which he personally decided not to charge her with a crime.
For Comey, in the words of Yogi Berra, it must have seemed "like deja vu all over again."
In 1996, Comey was appointed as a deputy special counsel to the Senate Whitewater Committee that investigated, among other things, allegations of obstruction of justice by top Clinton White House officials, including Hillary.
In 2002, Comey had just been appointed the U.S. Attorney for the Southern District of New York when he again found Hillary Clinton in his crosshairs. As the new U.S. attorney, Comey had inherited a well-developed investigation into allegations that the Clintons had traded presidential pardons for financial contributions to Bill Clinton's presidential library and Hillary Clinton's New York Senate campaign. Although a grand jury was empanelled and heard testimony from witnesses, Comey closed the investigation without filing any charges.
Curiously, one of the last-minute pardons issued by President Clinton went to John Deutch, his former CIA director. Deutch had agreed to plead guilty to a misdemeanor for the misuse of classified data that was found on a home computer connected to the internet, but the information charging him with the crime had not been filed by the time he received Clinton's pardon.
Deutch's pardon, which specifically mentioned the criminal information, was widely reported in the press. As Hillary Clinton was intimately involved in the granting of pardons by her husband — and received specific warnings that her use of a personal Blackberry and private email server put classified information at risk — it is difficult to understand how Comey could reasonably conclude that she had not broken the law.
Perhaps the Clintons' greatest crimes have been against the historical record, which is now full of holes thanks to their penchant for concealing and destroying official government documents. The Whitewater investigation was dominated by allegations that top officials in the White House Counsel deliberately concealed and ultimately destroyed records that were sought by law enforcement from the Department of Justice (DOJ).
In 2003, Sandy Berger, President Clinton's former National Security Advisor, was caught attempting to steal official White House records from the National Archives by stuffing the documents down his pants. The documents included classified terrorist threat warnings President Clinton received before 9/11. Berger later pleaded guilty to a misdemeanor, was forced to give up his law license and lost his security clearance for three years.
Since 1995, the written policy and regulations governing State Department officials have specifically provided that "electronic mail ... are considered federal records" that must be preserved under the Federal Records Act. Since 1943, applicable federal laws have stated that a document can constitute a federal record "regardless of physical form and characteristics."
Yet Clinton's lawyers admitted to the FBI that they deleted thousands of emails from her personal server without even reading the contents. Not only did the lawyers delete the emails, according to Comey, but they "cleaned their devices in such a way as to preclude complete forensic recovery."
At heart, Comey is an establishmentarian who is deeply invested in the revolving-door cronyism of Washington D.C.'s financial-security-industrial complex — the "rigged system" that both Bernie Sanders and Donald Trump complained about.
Throughout his career, he has shifted between high-powered jobs in the DOJ, the defense contractor Lockheed Martin, the large hedge fund Bridgewater Associates and, very briefly, academia. One doesn't succeed in such a tight-knit, incestuous community by making enemies or antagonizing important, powerful people. The currency that matters most in this milieu is power and wealth, not a burning desire to see justice done by getting to the truth of a matter.
Comey's first priority as an establishmentarian is to avoid political chaos, which goes a long way toward explaining why, for him, the third time was not the charm in his prosecutorial investigations of Hillary Clinton.