The Clinton campaign called his decision to announce publicly the review of newly discovered emails related to the Clinton investigation “extraordinary.” Democratic National Committee Chair Donna Brazile called it “irresponsible.” Sen. Dianne Feinstein (D-Calif.) called it “appalling.” And this New Yorker article shows just how contentious the decision was within the law enforcement community; Attorney General Loretta E. Lynch reportedly opposed it.
Partisans will certainly disagree about whether Comey did the right thing.
What's clear, though, is that he was faced with a completely unprecedented no-win situation with two horrible options.
As that New Yorker report and a new Washington Post editorial note, the Justice Department doesn't generally comment on ongoing investigations in this manner. Former attorney general Eric H. Holder Jr. formalized this practice four years ago, writing in a memo that officials “may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
But that ideal has run headlong into a hugely unusual set of circumstances and political realities.
In this case, the politics are already very much a part of this process, the investigation was already known about and either decision Comey made could have had far-reaching political implications — in this election and beyond. What's more, there were just 11 days left in the election when Comey made the announcement Friday. That is certainly an “extraordinary” set of circumstances that Comey had to wrestle with, so he made an extraordinary — in the truest sense of the term — decision.
The alternative for Comey here was to say nothing about the newly discovered emails. That would certainly have been the easier course in the near-term, because it wouldn't have inserted the FBI into the final days of the campaign.
But what if there did turn out to be something of real substance that altered his evaluation of this case, and what if it didn't come out until after the election and after Clinton was elected president? Imagine the scandal that would arise if and when it was discovered that the Justice Department had these emails before the election and chose to sit on them.
If that had happened, the Justice Department could certainly defend itself by citing that long-standing policy of not commenting on ongoing investigations. Just following protocol, it would say. But that defense almost definitely wouldn't pass muster with half the country. And let's not forget how many people think Clinton's private email server is a very legitimate issue; a poll after Comey's July announcement showed 56 percent of the country thought Clinton should have been charged with a crime.
It's hard to overstate what a massive scandal this would be.
Of course, if this decision ultimately helps Trump come back and win the presidency, that will also cause huge blowback. But at least in that case, the FBI couldn't be accused of covering something up; its sin would be in being too forthcoming.
Democrats view this as Comey — a Republican appointee who is no longer a registered member of the GOP — bowing to political pressure that has been applied by Republicans. Trump has been crying foul about a “rigged” political system for months, and his supporters have been eating it up. He also has been arguing for months that Clinton should be in jail or a special prosecutor should look at the case again, which his supporters also have eaten up.
That is the backdrop on which Comey had to make this decision, and there's no way the politics could be avoided. Law enforcement decisions should be independent of politics in an ideal world, but that's just wasn't plausible in this case. The public's confidence in the legal process is at stake.
Comey was confronted with an unprecedented situation and two very bad decisions, and he chose short-term pain over the prospect of a long-term scandal. Nobody should envy him right now.