DAVE LEROY: FBI’s Comey ‘Extremely Careless’ About the Rule of Law

July 11, 2016 - Idaho Statesman
As published in the Idaho Statesman July 11, 2016.

In Idaho “extremely careless” driving can cause you to lose your driver’s license for a year. Extremely careless conduct with a firearm can and frequently does cause a loss of life.

Extreme carelessness in the handling of another’s valuable property or money can earn you 14 years in the penitentiary.

But apparently, the extremely careless handling of national state secrets has won Hillary Clinton a pass from FBI Director James Comey.

Need I say that nothing about the stunning conclusion to this top-secret email investigation represents a normal or defensible law enforcement practice?

Never in the 20,000 criminal cases that I handled as a local and state-level prosecutor did I ever have a police officer usurp my role and tell me in his written report that “no reasonable prosecutor would bring this case.”

Not ever in decades of defending people charged with crimes, have I encountered a law enforcement officer who presumed to intervene for the defense to explain that my client was not sufficiently “sophisticated” to form an intent. Would we retain on the force a Boise city detective, let alone applaud police Chief Bill Bones, if they personally interviewed a high-profile suspect in a sensational felony case without reading that person her rights, taking testimony under oath, recording and transcribing the conversation or all of the above?

Should our U.S. Attorney for Idaho chat with the spouses of investigative targets and not conflict herself off the cases?

As Americans we are asked to give our respect and obeisance to laws and rules, courts and judges because we are assured that we will each be treated fairly and equally under the rule of law.

The concept arises from the earliest days of our country. Thomas Paine, the patriot, exhorted would-be rebels in his 1776 pamphlet “Common Sense” that “in America, law is king!”

Founding Father John Adams insisted upon “a government of laws, not men.”

Will federal agents overlook the transgression the next time one of my clients tells lies under oath? Can you be assured that the destruction of thousands of pages of evidentiary emails is no longer a criminal act? Are the “gross negligence” provisions of the thousands of local, state and federal laws that contain that term now no longer capable of proof?

Sadly, in attempting to save the normalcy of an already highly irregular presidential nominating process, the director of the FBI has rendered a political rather than a legal judgment. In failing to do his job, Comey has been “extremely careless” himself and damaged every citizen’s respect for the rule of law.

David H. Leroy, former Ada County prosecutor and Idaho attorney general, practices law in Boise.