Comey and the Clinton Email Investigation

The Clinton camp’s response to FBI Director Comey’s October 28 letter to Congress  concerning the newly-discovered trove of emails that may be pertinent to the Bureau’s investigation of Clinton’s email practices was to orchestrate an all-out war against Comey. This strategy features direct attacks on him by Clinton and her campaign accompanied by a flood of op-eds and similar pronouncements by others condemning his action. The efforts to discredit Comey have been widely embraced by pro-Clinton media outlets, although even the Washington Post has now apparently had enough of it.

One can certainly question Comey’s exercise of judgment at various stages of the Clinton email investigation, but there is no call to challenge his integrity. The serial accusations that he acted for political reasons and in violation of Justice Department policy or even federal law are baseless.  The most salient evidence of this–wholly ignored by the critics–is that top Justice officials, when consulted in advance, allowed Comey to submit his letter. Clearly they had the authority to prevent him from sending the letter, and indeed a duty to do so if they regarded this proposed action as the egregious violation of departmental policy and federal law that critics allege.

The attacks on Comey are not only spurious but strongly suggest a “kill the messenger” strategy designed to divert attention from the real issues that the belated discovery of these emails poses. One of these issues is why the new emails did not come to light during the original investigation. Another issue is whether the demonization of Comey by Clinton and her allies will make it impossible for him to continue to serve out his term as FBI director if she is elected president.

Finally, the unrelenting politicization of the Clinton email investigation by partisans on both sides has thoroughly undercut the ability of the FBI director and the attorney general to produce an investigative result that can inspire widespread public trust and confidence. At this point, the only way to achieve that goal is to turn the entire investigation over to an independent special prosecutor.

Each of these points is discussed in more detail below.

Stop the bogus personal attacks on Comey

In assessing Comey’s conduct, it is important to focus on his actual words and actions rather than the partisan spin that surrounds them. In July, Comey announced the results of the FBI’s investigation into Clinton’s email practices and famously concluded that “no reasonable prosecutor” would indict her based on the investigation’s findings. In congressional testimony shortly thereafter, he stated under oath that the FBI’s investigation was complete. Comey has said that he was obligated to submit his October 28 letter because discovery of the new potentially relevant emails necessitated additional investigation. This, of course, rendered his previous testimony that the investigation was complete inaccurate.

Contrary to many criticisms, Comey’s letter is not vague or ambiguous; nor does it consist of innuendo. The letter states straightforwardly that new apparently pertinent additional emails have been discovered, that these emails may or may not prove to be significant to the Clinton investigation, and that they will be assessed in order to determine their significance if any. In this regard, the substance of his brief letter bears quoting:

“In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

“Although the FBI cannot yet assess whether or not this material may be significant and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.”

An actual reading of the letter suggests that it has been both over-hyped by Clinton opponents and over-condemned by Clinton and her supporters. The media has echoed and amplified these partisan overreactions. Critics and media outlets complain that Comey should have said more and demand that he immediately release additional information about the emails. But what more could he reasonably say or do at this time? The key question of whether the emails are in fact significant to the Clinton investigation obviously cannot be answered until they are analyzed. It would be totally irresponsible for Comey to speculate about the outcome of the FBI’s analysis, disclose snippets of information, or release the emails (some of which may contain classified information) before they can be fully and carefully reviewed.

Most troubling of all are the widespread but false accusations that Comey’s actions violated federal policy or even federal law. As to the first, critics accuse him of violating Justice Department policy by sending his letter within 60 days before the election. Unfortunately, this accusation has not received the scrutiny (particularly by media fact-checkers) that it deserves. Consider the following:

• The Justice Department policy in question is contained in a March 2012 memo from former Attorney General Eric Holder to all Justice employees. However, this memo does not even literally apply to the Clinton email investigation; it is addressed to prosecutions of election-related crimes such as those involving campaign finance laws and corruption of election processes.

• In any event, the memo places no substantive restrictions on what investigative and prosecutorial actions can be taken or when they can occur in relation to elections. It simply recites the obvious admonition that employees should not time their actions (whatever and whenever they may be) for the purpose of influencing an election or favoring one candidate or party. Importantly, the memo deals only with the purpose underlying the timing of actions not their effects. Presumably this is because any and all actions in an election-related case, including a delay or refusal to act, could have an effect on the election.

• The memo says nothing about a moratorium on taking action or releasing information within 60 days (or any other time period) before an election. According to Politifact, the 60-day moratorium critics accuse Comey of violating is an “unwritten guideline” among U.S. attorneys. It is perhaps a somewhat dubious one at that, or at the very least not a hard and fast rule. Politifact’s lone source for the existence of this informal guideline is a statement by former Chicago U.S. Attorney Patrick Fitzgerald at a law school symposium that actually mocked it: “In Chicago, corruption can be a volume business, so why shut it down for 60 days? When you threaten a witness, we will charge and get the handcuffs on you as quickly as possible.”

• There is no credible basis to conclude that Comey sent his October 28 letter for the purpose of influencing the presidential election. On the contrary, there is every reason to believe that he was as chagrined as anyone when the new emails turned up, thereby undercutting his congressional testimony, and to accept his perfectly plausible explanation that he felt obliged at this point to correct his testimony, which was now inaccurate. Indeed, it has been reported that Justice Department rules required Comey to correct his testimony.

• One further point is perhaps the most significant of all. Critics note that top Justice officials whom Comey consulted in advance strongly advised against sending the letter; however, they ignore the more telling fact that these officials left the final decision to him. While the FBI director has an unusual degree of independence, he still reports to the attorney general, who is his boss, and is fully subject to her direction. If the attorney general believed that sending the letter would violate Justice policy, and particularly if she viewed it as the egregious violation critics assert, she had ample authority—indeed a clear duty—to order him not to send it. (If the attorney general felt conflicted from acting in this situation, the deputy attorney general could have given the order.) Had Comey sent his letter in defiance of an order from the attorney general or deputy not to do so, this would be an entirely different matter. However, the fact that these officials allowed Comey to send the letter necessarily indicates either that they did not consider this action a violation of Justice policy or makes them complicit in the violation and, given their positions of control, ultimately responsible for it.

The accusation that Comey violated the Hatch Act by sending the letter is similarly unfounded. The Hatch Act provides in relevant part that a federal employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election” (5 U.S.C. 7323(a)(1)). As discussed above, there is no basis to attribute such a purpose to Comey. Moreover, if this was the purpose, the attorney general and/or her deputy would be complicit in the Hatch Act violation. It is also worth noting that those accusing Comey of a Hatch Act violation now made no claim that his July action effectively exonerating Clinton from criminal liability was done for purposes of influencing the election in violation of the Hatch Act, even though the July action was far more significant.

Finally, some critics speculate that Comey caved to pressure from congressional Republicans or dissidents within the FBI. This speculation seems laughable. Whatever one thinks of Comey, there is no questioning his fortitude. Had he feared political pressure or internal criticism, Comey surely would have taken the easy way out in July and simply reported his findings to Justice without making a public recommendation and thereby painting a huge target on his back. Moreover, he showed not the slightest sign of intimidation during the nasty and intensely partisan congressional hearings that followed his July statement.

In sum, Comey’s action in sending the October 28 letter, whether advisable or inadvisable, was a good faith judgment call rather than an effort to sway the presidential election. As such, it did not violate any policy or law.

Why did the newly-found emails just turn up now?

Press reports indicate that the new emails were found on Anthony Weiner’s laptop and number in the tens or even hundreds of thousands. How could such a massive trove of potentially relevant emails be completely overlooked in the original investigation? The answer to this question may turn out to be more interesting than the content of the emails. It’s obviously premature to speculate about this; perhaps a definitive explanation will never be found. However, one would hope that this question will be pursued. The lines of inquiry likely would focus on investigative shortcomings on the part of the FBI, disclosure shortcomings (intentional or otherwise) on the part of one or more witnesses or their representatives, or some combination of these factors. In any event, if this latest email fiasco turns into an “October surprise” that impacts the election, the blame should fall on whomever (if anyone) is found responsible for their belated appearance.

Could Comey and Clinton coexist in a new administration?

Another potential consequence of this latest Clinton email fiasco has not yet received attention but looms large for the future. Comey’s statutory 10-year term of office extends through the term of the next president and well beyond. By choosing to demonize Comey, Clinton almost surely made it untenable for him to continue as FBI director if she is elected president. It is hard to imagine how Clinton could express confidence in Comey given her attacks on him and those of her supporters. It is equally hard to imagine how Comey could serve effectively without the confidence of the president. Further complicating the situation (to say the least) is the possibility that, with the discovery of the new emails, the Clinton investigation could carry over into the next president’s term. Even if the investigation is closed once and for all by the time of the inauguration, there seems little chance of forging a constructive working relationship between Clinton and Comey given all the baggage developed this year.

Time for a special prosecutor

Due to the relentless politicization of the Clinton email investigation by both the pro- and anti-Clinton forces, there is little hope that the matter can be resolved through the standard federal law enforcement processes in a way that will garner public trust. Unfortunately, first Republicans and now Democrats, along with much of the media, have turned Comey into a political piñata and thus severely undermined his credibility. The credibility of Attorney General Lynch also has been compromised. Her ill-considered airport meeting with Bill Clinton has, fairly or unfairly, limited her ability to contribute to and oversee the FBI investigation. Concerns also have been raised about whether Justice has fully cooperated with the FBI in the investigation. Most recently, there are concerns that Justice is now seeking to push review of the of new emails too quickly, risking a possibly premature resolution, in order to wrap it up before the election.

Given all of this, the only way to salvage an outcome from this mess that can achieve widespread bipartisan and public acceptance is to turn the investigation over to an independent special prosecutor. Special prosecutors do not have a great track record in recent decades and should be used only as a last resort. However, if ever there was a situation that cries out for one it is this fiasco. The Obama Administration should immediately take steps to have a special prosecutor appointed to review the newly discovered emails at a minimum and perhaps to take a fresh overall look at the investigation’s findings and recommendations. The goal should be to resolve the entire matter as soon as possible and, ideally, before the beginning of the next president’s term.