Eric Holder was U.S. attorney general from 2009 to 2015. He is supporting Hillary Clinton in the presidential election.
I began my career in the Justice Department’s Public Integrity Section 40 years ago, investigating cases of official corruption. In the years since, I have seen America’s justice system firsthand from nearly every angle — as a prosecutor, judge, attorney in private practice, and attorney general of the United States. I understand the gravity of the work our Justice Department performs every day to defend the security of our nation, protect the American people, uphold the rule of law and be fair.
That is why I am deeply concerned about FBI Director James B. Comey’s decision to write a vague letter to Congress about emails potentially connected to a matter of public, and political, interest. That decision was incorrect. It violated long-standing Justice Department policies and tradition. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season. That guidance, which reinforced established policy, is still in effect and applies to the entire Justice Department — including the FBI.
The department has a practice of not commenting on ongoing investigations. Indeed, except in exceptional circumstances, the department will not even acknowledge the existence of an investigation. The department also has a policy of not taking unnecessary action close in time to Election Day that might influence an election’s outcome. These rules have been followed during Republican and Democratic administrations. They aren’t designed to help any particular individual or to serve any political interest. Instead, they are intended to ensure that every investigation proceeds fairly and judiciously; to maintain the public trust in the department’s ability to do its job free of political influence; and to prevent investigations from unfairly or unintentionally casting public suspicion on public officials who have done nothing wrong.
Director Comey broke with these fundamental principles. I fear he has unintentionally and negatively affected public trust in both the Justice Department and the FBI. And he has allowed — again without improper motive — misinformation to be spread by partisans with less pure intentions. Already, we have learned that the importance of the discovery itself may have been overblown. According to the director himself, there is no indication yet that the “newly discovered” emails bear any significance at all. And yet, because of his decision to comment on this development before sufficient facts were known, the public has faced a torrent of conspiracy theories and misrepresentations.
This controversy has its roots in the director’s July decision to hold a news conference announcing his recommendation that the Justice Department bring no charges against Hillary Clinton. Instead of making a private recommendation to the attorney general — consistent with Justice Department policy — he chose to publicly share his professional recommendation, as well as his personal opinions, about the case. That was a stunning breach of protocol. It may set a dangerous precedent for future investigations. It was wrong.
The director said in July that he chose to take that extraordinary step in response to intense public interest. During my 12-year service in the Public Integrity Section and as attorney general, I worked on some of the most politically sensitive cases that our country saw. The additional public scrutiny such investigations provoke makes it even more important that we handle those cases consistently and responsibly. That is exactly why guidelines are put in place: so that Justice Department leaders, including FBI directors, will not substitute their own judgments and opinions for reasoned, fair, coherent and time-tested policy.
I am mindful of the unique facts that surrounded the July decision. The airplane meeting between the attorney general and former President Bill Clinton led to the perception among some that inappropriate communications occurred. Perceptions matter. But the solution was not for the FBI director to announce the department’s decision about whether to proceed. That determination — and how or whether it should have been be publicly revealed — rested with department lawyers, after consultation with FBI counterparts.
If the attorney general determined that she could not participate in the process, the deputy attorney general, Sally Yates, a respected, apolitical, career prosecutor, should have stood in her place. Any comments should have come from the attorney general or deputy attorney general, the people who always communicate prosecutorial decisions made by the department. And let me be clear: Far less than that which was shared in the July news conference, and afterward, should have been revealed.
Those of us who have served as stewards of our nation’s justice system — from line prosecutors to attorneys general — are tasked with an awesome responsibility. The idea that all Americans are entitled to the same rights and obligations — to fair treatment and due process — is central to who we are and what we stand for as a nation. Whether that idea endures for future generations depends on the actions we take to keep its promise real.
I served with Jim Comey and I know him well. This is a very difficult piece for me to write. He is a man of integrity and honor. I respect him. But good men make mistakes. In this instance, he has committed a serious error with potentially severe implications. It is incumbent upon him — or the leadership of the department — to dispel the uncertainty he has created before Election Day. It is up to the director to correct his mistake — not for the sake of a political candidate or campaign but in order to protect our system of justice and best serve the American people.
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