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‘It’s a firing offense:’ Why James Comey may have broken the law with Clinton emails

FBI Director James B. Comey. (Yuri Gripas/Agence France-Presse via Getty Images)

In the past 24 hours, two high-profile figures from opposite sides of the political spectrum have accused FBI Director James B. Comey of potentially and illegally influencing the presidential election. Senate Minority Leader Harry Reid (D-Nev.) made the accusation in a letter Sunday night, and Richard Painter, who was an ethics lawyer in the George W. Bush administration, said the same thing in a New York Times op-ed published Sunday.

Their line in the sand: the Hatch Act, a Depression-era law that prohibits government employees from using their taxpayer-funded office to play politics. Local government officials have gotten in trouble via the legislation for running for an elected, partisan office. Same with Cabinet secretaries who talk politics on the job.

It can be a career-ending error. The Office of Special Counsel, a federal watchdog agency, investigates and subsequently determines violations of the Hatch Act. Running afoul of the regulations can cost an official their position.

So did Comey, a Republican, try to influence the campaign by telling Congress 11 days before the presidential election that he found emails "pertinent" to the FBI's deactivated investigation of Democratic nominee Hillary Clinton's private email server? It's possible, says Kathleen Clark, an expert on legal ethics at Washington University in St. Louis. It probably comes down Comey's intent -- and something he said Friday could be construed as intending to influence what happens Nov. 8.

The Fix talked over the allegations with Clark in a phone interview. Our conversation has been lightly edited for length and clarity.

THE FIX: From your legal standpoint, what are the allegations against Comey?

KATHLEEN CLARK: Both Painter (implicitly) and Reid (explicitly) point to an alleged double standard about publicizing the disclosure of allegations regarding a presidential candidate: The allegations that Donald Trump has a connection to the Putin regime that were apparently not publicized, and the emails are somehow maybe relevant to the investigation of Hillary Clinton's emails and use of her private server that were publicized.

Painter goes on to say: 'We don't need to worry ourselves with what actually motivated Comey because we can just look at what the natural result of his behavior is,' and whether there is any explanation for his behavior. In other words: If it smells like a Hatch Act violation and it sounds like a Hatch Act violation, it may be a Hatch Act violation.

THE FIX: So, was it a Hatch Act violation?

CLARK: It's possible. In Comey's letter to FBI employees, he explains why he informed Congress in part by saying: 'I also think it would be misleading to the American people were we not to supplement the record.'

That sounds like he was interested in leading (or not misleading) the American people.

THE FIX: And that suggests he intended to influence the election?

CLARK: (Rhetorically) When the head of the FBI sends a letter in order to not mislead the American public 11 days before the election, do you think he's trying to influence the election? I actually think this is the most inculpatory thing I've seen, is his letter to FBI employees.

He's not saying 'I subjectively intend to influence an election.' But he is saying: 'I want to get this information out to the American people.' I'd point to that as reason to investigate as a possible Hatch Act violation. It's not enough to conclude there is one. But I'd say it's probably enough to investigate.

Because, again, he's not saying, 'It would be misleading to Congress,' implying he has an obligation to correct the record so as to not mislead this government body. It's the American people he's talking about.

THE FIX: And why is intent so important here? Other Cabinet-level secretaries have been reprimanded for violating the Hatch Act even when they said they didn't know that's what they were doing.

CLARK: What is prohibited under the Hatch Act is the use of government office to influence. I'm skeptical that the fact that government action could influence the election could be enough to be a violation. When the Department of Labor puts out statistics on the state of the economy, that can influence an election. But no one would say that constitutes influencing. I would think you'd have to have some kind of intent.

THE FIX: Jumping a lot of steps here, but could Comey go to jail if he violated the Hatch Act?

CLARK: No, no no. It's not a criminal offense. It's a firing offense. ...

But Reid may be laying down this allegation to delegitimize Comey prior to the election, and then if Hillary Clinton is elected she has cover, she has additional cover to fire Comey.