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Opinion ‘Tell me what you would do’? Challenge accepted, James Comey.

FBI Director James Comey talks about his announcement about re-opening the probe into Hillary Clinton’s use of a private email server days before the election. (Video: Reuters)

FBI Director James B. Comey returned to Capitol Hill on Wednesday, testifying at a Senate Judiciary Committee hearing on oversight of the bureau. Like Comey’s past visits to Congress, much of this hearing focused on his handling of the probes into President Trump’s ties to Russia and Hillary Clinton’s email practices during last year’s election. Six months after Election Day, Comey made his strongest defense of his decision to publicly reopen the Clinton investigation while remaining silent about the Trump investigation. But his justifications fell short again — and Comey needs only to look at his own testimony to know why.

Early in the hearing, responding to Sen. Dianne Feinstein (D-Calif.), Comey summarized how he made his decision:

I could see two doors and they were both actions. One was labeled speak, the other was labeled conceal. … And so I stared at speak and conceal, speak would be really bad. There’s an election in 11 days, Lordy, that would be really bad. Concealing in my view would be catastrophic, not just to the FBI, but well beyond. And honestly, as between really bad and catastrophic, I said to my team we got to walk into the world of really bad.

“Everybody who disagrees with me,” Comey said, “has to come back to October 28th with me and stare at this and tell me what you would do.” Challenge accepted.

First, “come back to October 28th with me” is a rhetorical sleight of hand, because the rest of the world didn’t know then what Comey and a few others in government knew. We didn’t know that there was “no new evidence” of wrongdoing on Clinton’s part. We didn’t know that there was also an active probe into the Trump campaign. We didn’t know that that probe had turned up concrete evidence of contacts between Russia and Trump advisers. Comey knew.

Yeah, that James Comey nausea thing is definitely going around

In fact, when deciding what to do shortly before Election Day, Comey had an obvious example of what not to do — one that he mentioned in his testimony. Last June, as the FBI was deciding whether to charge Hillary Clinton, Bill Clinton visited Attorney General Loretta E. Lynch aboard her plane in Phoenix. Days later, Comey announced with his own press conference the bureau’s decision not to charge, rather than going through Lynch’s DOJ. “What I struggled with in the spring of last year,” Comey told Sen. Thom Tillis (R-N.C.) on Wednesday, “was how do we credibly complete the investigation of Hillary Clinton’s e-mails if we conclude there’s no case there?” He continued:

And then the capper was — and I’m not picking on the — the Attorney General Loretta Lynch, who I like very much — but her meeting with President Clinton on that airplane was the capper for me. And I then said, you know what, the department cannot by itself credibly end this. The best chance we have as a justice system is if I do something I never imagined before, step away from them and tell the American people, look, here’s what the FBI did, here’s what we found, here’s what we think. And that that offered us the best chance of the American people believing in the system, that it was done in a credible way.

Comey understood why Bill Clinton’s visit was rightly criticized: The mere appearance of the DOJ appearing to favor one party over the other crippled the department’s credibility, no matter how innocent Lynch and Clinton’s talk may have been. Whatever was to be done Oct. 28, Comey should have known that the worst possible decision was one that, regardless of the reasons, would appear to favor one party over the other. Yet that’s exactly the decision he made. Indeed, it had more than an “appearance” of helping: There are reams of evidence that Comey’s letter probably put Trump in the White House.

Whether Comey chose to “speak” or “conceal,” he should have applied that choice to both candidates. Given the dangers of revealing the Trump probe and reviving the Clinton investigation right before the election, the best course likely would have been to remain silent on both. “I’ve lived my entire career,” Comey said Wednesday, “by the tradition that if you can possibly avoid it, you avoid any action in the run-up to an election that might have an impact.” If only he had stuck to that.