Today, 48 hours before Election Day, Comey sent another letter to key leaders in Congress — this one making clear that no charges would be brought against Clinton, the Democratic presidential nominee.
“We have not changed our conclusions that we expressed in July with respect to Secretary Clinton,” Comey wrote.
Comey had to know that he would set off a political whirlwind with his first letter. The FBI investigation of Clinton's emails — and the fact that she used a private server exclusively during her time as secretary of state — has been an anchor around her campaign's neck for the entirety of the presidential race. Clearing Clinton of any criminal wrongdoing — while simultaneously blasting her judgment — in July, Comey seemed to put a stop to the political impact of the email controversy.
To then turn around so incredibly close to the election and publicly announce that an investigation that had lain dormant for months was now back on because of the emails found on Weiner's computer suggested that there was some there there. And, the fact that investigators working on a case involving Weiner had known about the Clinton-related emails for weeks and had briefed Comey on them before he went public seemed to bolster the case that the director had a strong suspicion that something beyond what had already been discovered was on Weiner's computer.
After all, it would be the height of irresponsibility to inject the email controversy back into the campaign on the off chance that something on Weiner's computer might implicate Clinton. If Comey had no real indication that there was evidence of problems for Clinton — above and beyond the errors in judgment he had previously knocked her for — then why go public with anything?
Comey defenders will insist that he was in a no-win situation. Acknowledge the investigation of the Clinton-related emails on Weiner's computer publicly, find nothing, get blamed. Keep the investigation private until after the election and be accused by Republicans of pulling punches to help get Clinton elected.
Sure, sort of. If this had been 2014 or even 2015, it's easy to see how Comey could and should make the choice he did. But, it's impossible to say that he and the FBI operate entirely outside of the political world or that the same rules of the road apply when it comes to when and whether things should be made public.
Referees in the National Basketball Association ref the first 44 minutes (or so) of a game differently than they ref the final four minutes. They understand that in the final four minutes, the bar for a foul is higher because the stakes are raised. Shooting two free throws in a two-point game in the first quarter is very different from doing the same thing with 35 seconds left in the game.
Same goes for Comey. He needed to understand that to say something about Clinton's email investigation so close to the election meant that he had very real concerns about the possibility of a president-elect being indicted. To simply say — after a nine-day hurricane of news stories about Clinton's emails — that there was never anything to see here is a remarkable swing and miss on Comey's part.
The Clinton campaign won't say much about Sunday's Comey announcement for fear of re-injecting the FBI and her emails into the conversation in these last few days of the campaign. But, if I were them — or lots of down-ballot Democrats — I would be livid.