FBI Director James B. Comey sent an ominously worded but content-free letter to members of Congress on Friday apprising them that additional emails had been found that “appear to be pertinent” to the investigation into Hillary Clinton’s email server. But wait: The FBI didn’t know what is in the emails. (A warrant to review their contents was reportedly obtained on Sunday.) One has to question then how he even knew they were pertinent to Clinton, let alone significant. They could all be duplicates of things we have seen. (Other reports suggest none of them came from her server.) After a weekend of FBI and Justice Department officials struggling via background leaks to make sense of the letter, we are no closer to figuring out why Comey chose to make such a big splash with so little information.
Pete Williams reported that Justice Department officials “cited long-standing policies against disclosing details of investigations that are underway or taking actions that could affect an election, especially in the period leading up to one.” He continued, “That was especially so, they said, given that FBI agents have not yet analyzed the newly discovered e-mails to see if they contain classified information, the central issue in the investigation of the Clinton private e-mail server.”
Comey defenders say that he was between the proverbial rock and a hard place. If it came out after the election that these emails were relevant he would have been accused of hiding the ball. That’s not a rock and a hard place — it’s Comey trying to protect himself from second guessing.
If he had not sent the letter and was asked after the election why the potential for more information was not disclosed, he would/should have answered as follows:
I literally had no idea what was in the emails. It therefore would have been impossible to determine if they were significant — or even related to Hillary Clinton at all. We did not even have a warrant until Oct. 30. We do not make announcements about the potential for discovery of more information that might or might not have relevance to a past investigation. There is a reason why the FBI does not comment on ongoing investigations. It is why the Justice Department does not even bring indictments before an election; indictments contain allegations but these are not proven. And here we didn’t have enough even to make an allegation. It would therefore be prejudicial and highly unfair to put that out, especially less than two weeks before an election.
Comey did not do that because, according to news reports, he’s been smarting under brutal fire from Republicans since deciding not to recommend a prosecution back in July. Well, to that we say: Tough. It’s not his job to try to silence outrage. It’s certainly not his job to do a “make good” for one side by overcompensating in its direction when a new issue comes up. That’s politics, not justice.
Alternatively, as Alan Dershowitz recommends, he could have sent a letter that made clear there could be no presumption of any adverse information concerning Clinton. (“Neither I nor my investigators have seen these emails. At this time, we have no idea whether they are duplicates of what has already been produced or whether they contain any information pertinent to the investigation of Hillary Clinton’s emails. We simply do not know. Nobody should presume therefore that there is anything pertinent to our investigation, or incriminating, in any of these emails.”)
Comey’s letter to FBI employees sent later on Friday suggests he recognizes to some extent that he blew it. It reads in part: “Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed.” That’s extraordinary: He admits this was not in keeping with policy, but he chose to cover for himself anyway, lest he later be accused of misleading Congress. (He never would have been in this position if he had not agreed to testify back in July about a decision not to recommend prosecution, a step many nonpartisan legal experts criticized.)
Comey then underscored that he really doesn’t know anything. He wants his own employees to know that “we don’t know the significance of this newly discovered collection of emails.” He adds, “I don’t want to create a misleading impression.” But of course he did just that, which is why he chose to write to his employees later in the day.
Jack Goldsmith, who confronted a firestorm in the George W. Bush administration concerning the legality of national security surveillance measures, and Ben Wittes of Brookings write that Comey’s actions were not proper and did violate department guidelines:
Here Comey opened a new set of questions about one of the major party candidates with 11 days to go in the campaign—questions he has all but said he can’t answer yet. Doing so offers an open-ended opportunity for Clinton’s opponents to make inferences about her conduct. And Trump has done exactly that, saying [Friday] “they are reopening the case into her criminal and illegal conduct that threatens the security of the United States of America. Hillary Clinton’s corruption is on a scale that we have never seen before.”
The authors add, “Comey is on a slippery slope of sorts, in which each disclosure necessitates the next disclosure and draws the FBI further and further away from Justice Department norms designed to keep law enforcement out of election campaigns.”
The authors contend that Comey is not “political.” Perhaps he is not partisan, but he certainly played a political game to protect himself. He was not willing to follow the rules to prevent interference with democratic elections — intended for this precise situation — because he was so concerned with his own problem with Congress. Incidentally, this situation was a classic conflict of interest. Avoiding personally getting crosswise with Congress (over testimony he never should have given) ran headlong into the impartial administration of his duties. In such a situation the honorable thing to do would have been to quit. And that is what many will no doubt urge him to do after the election.