Even if the Justice Department wanted to prosecute Hillary, FBI director James Comey’s press briefing would have made it difficult, if not impossible, to get a grand jury to indict and a trial jury to convict.

Comey made a public statement of the facts of Hillary’s use of a personal email account and his opinion that “no charges are appropriate in this case.”  By doing so, any potential grand juror or trial juror would likely have heard his exoneration of Hillary, and that alone would have poisoned the jury pool.  Comey made it challenging, if not impossible, for the Justice Department to pursue prosecution and indictment, which is Justice’s prerogative, not the FBI’s.

As I was watching Comey’s recitation of the facts of the case, I was thinking that he was going to recommend a non-prosecution simply because he publicly stated the essence of the FBI’s investigation, and therefore, he was precluding any jury’s hearing the case.  Normally, the FBI would make a confidential referral to Justice, and Justice would decide.  Comey alone was the investigator, prosecutor, and judge.

During the questioning of Comey before the House Oversight and Government Reform Committee, none of the Republicans on the committee raised this issue.  They did press Comey on his rationale for failure to recommend prosecution, but Comey’s reckless perversion of the judicial process by going public with his investigation was ignored.