Is FBI Director James Comey “fiercely independent,” as President Barack Obama described him three years ago when nominating him for his current job, or fiercely self-serving? That’s the question that looms large in the wake of Comey’s unprecedented decision to wade into a presidential race eleven days before election day by announcing that he’d reopened an investigation into Democratic candidate Hillary Clinton concerning her private email server—an investigation that he had brought to close in a major press conference in July. The announcement, which came in a very short letter to members of Congress Friday, violated two long-established rules governing criminal investigations. But apparently Comey believes that being independent means not having to follow the rules.
The first rule Comey disregarded requires law-enforcement officials to avoid public comment on ongoing investigations. That rule is designed to prevent prosecutors and law enforcement officials from using their authority to cast innuendo on the reputations of citizens; their job is to conduct investigations, not offer public character assessments. Comey’s original sin in this regard was his highly unusual press conference four months ago, in which, rather than simply noting that he had found no evidence of Clinton violating any laws, he went on to castigate her as “extremely careless.” The last I checked, carelessness is not a federal crime, and therefore, as FBI director, Comey had no business offering his opinion. The authority of the nation’s top law-enforcement investigator comes with responsibility to weigh one’s words and actions carefully; if anything, it was Comey who was “extremely careless.”
Having violated the rule against public comment once, Comey then doubled down, using his own prior violation to justify Friday’s repeat infraction. In an email to his staff, Comey defended his extraordinary step of publically announcing the resumption of a closed criminal investigation by stating that he had promised to keep Congress informed when he testified in July about the closure of the investigation. The job of the FBI, however, is not to offer Congress public progress reports on criminal investigations, but to conduct those investigations in confidence unless and until they warrant an indictment or dismissal. And his “report,” such as it was, was misleading. What prompted Friday’s announcement was the discovery of emails from Huma Abedin, Clinton’s chief of staff at the State Department, on the computer of Abedin’s now-estranged-husband, Anthony Weiner, who is under a separate investigation for allegedly “sexting” with a minor. But Comey’s letter to Congress failed to note that neither Comey nor his underlings had actually read any of the newly discovered emails, and therefore had no basis for believing that they constituted evidence of wrongdoing.
The second rule Comey violated is even more fundamental. The rule, which has been endorsed by attorneys general of both parties for decades, requires law-enforcement officers to avoid filing even completed indictments against candidates for political office within sixty days of an election. It applies to all elections, from those for local school boards to those for our nation’s highest office. The reason for this is that there is too great a risk that the power of the criminal process could interfere in an election, even where—as is decidedly not the case here—prosecutors have sufficient information to indicate that a candidate has committed a crime. That is, even if the FBI had acquired enough evidence to charge Hillary Clinton formally with knowingly transmitting classified information or otherwise violating criminal law, the rule would counsel against making that fact public until after the election. Yet Comey chose to go public, just eleven days before a presidential election, without even a basis for believing the “new” evidence he had come across was actually new, much less evidence of a crime.
Not only had FBI officials not seen the emails on Weiner’s computer at the time of Friday’s announcement. They had not even received a warrant to examine them. (They only got the warrant over the weekend.) Accordingly, the FBI had no basis for believing that the emails offered any evidence of criminal conduct on Clinton’s part. For all we know, the emails may simply be duplicates of those on Clinton’s and other computers that FBI investigators have already combed through.
Comey prides himself on being independent. While serving as deputy attorney general under President George W. Bush, he bravely stood up to White House Counsel Alberto Gonzales, who was seeking to pressure a hospitalized and sedated Attorney General John Ashcroft to approve an NSA program the legality of which many Justice Department officials had questioned. But independence can be taken too far. As another former deputy attorney general for George W. Bush, George Terwilliger, said, “there’s a difference between being independent and flying solo.” There are compelling reasons for rules limiting public comment on ongoing criminal investigations and interfering in upcoming elections. “Independence” doesn’t excuse breaking them.
Comey was no doubt worried that had he not informed Congress of the new evidence, and had it come out after the election that he had kept it quiet—and assuming the emails were of any importance, which has yet to be shown—he might have been subject to criticism from his own Republican Party. He certainly would have been condemned by some. Trump and his supporters have been calling for Clinton’s prosecution ever since the email controversy surfaced—notwithstanding the absence of any evidence that she actually broke any laws. In the wake of an election, they would have directed at least some of their anger at Comey, and their concerns would not likely have been assuaged by the fact that he had actually followed the rules.
But those are the burdens a responsible government official must bear. Following the rules was the right thing to do, even if it might have come at some cost to Comey’s personal reputation. By elevating his own concerns about his personal reputation above the rules, Comey will forever be remembered as the FBI director who abused the power of his office to interfere in an imminent presidential election.