The Clinton Email Investigation: Professor Wisenberg's Grades Are In.

28 CFR § 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

FBI Director James Comey:

1. F for failure to resign in protest when Attorney General Lynch kept the email investigation within the confines of DOJ. If there was ever a case justifiying the appointment of a Special Counsel, this was it. You appointed a Special Counsel to investigate the Plame Email leak when you were Acting Attorney General in the Bush Administration. You should have insisted on the same course of conduct here on threat of resignation. You had the standing and reputation to pull it off.  You didn't. You blew it, and later apparently tried to make up for it through your inappropriate prejudicial public pronouncements.
2. F for letting Attorney General Lynch off the hook and effectively announcing the non-prosecution recommendation. Prosecutive decisions belong to prosecutors, not FBI agents or FBI officials.
3. F for publicly smearing Ms. Clinton while announcing that no charges would be brought against her. If you don't indict, you don't smear, unless you are under a statutory duty to file a report.
4. F for answering too many questions about the investigation when appearing before the House Judiciary Committee.
5. F for releasing confidential FBI investigative reports to the House.
6. F for failure to resign in protest given the kid gloves treatment afforded to Ms. Clinton and her aides during the investigation.
7. F for your public announcement 11 days before the election. 

Attorney General Loretta Lynch:

1. F for failure to appoint a Special Counsel.
2. F for your tarmac meeting with former President Bill Clinton.
3. F for handing over the prosecutive decision to FBI Director Comey.  If you needed to recuse, the final call, at that point in time, should have been made by your Deputy AG Sally Yates.
4. A for your four line statement announcing the declination. It is the one thing you got right.

President Barack Obama:

1. F for failing to insist that AG Lynch appoint a Special Counsel.
2. F for your repeated public statements effectively proclaiming Ms. Clinton's innocence. You interfered with a pending investigation and potentially poisoned the jury pool.

DOJ Prosecutors:

1. F for handing out use derivative immunity deals like they were candy and reaping no indictments in return.
2. F for allowing Cheryl Mills to attend Ms. Clinton's final interview as one of her attorneys.
3. F for not recording Ms. Clinton's interview.

 

These are preliminary grades, subject to revision as more facts are revealed.

(wisenberg)