I’ve never been enamored of the cliché about an “October surprise”; it’s an artificial construct for anything unexpected in the final weeks before an election. Actually, the only surprise in this turbulent election would have been if nothing out of the ordinary happened in the closing days. It felt a bit weird that—up until about 1:00 PM on Friday, October 28—we seemed to be drifting toward an inexorable and overwhelming victory for Hillary Clinton, while Donald Trump was headed toward a humiliating defeat. The esteemed political analyst Charlie Cook predicted that the Democrats would win five to seven Senate seats and take over that body in the next session; even the highly gerrymandered House of Representatives was seen as possibly in play.
But then on Friday, October 28, FBI Director James Comey’s vaguely worded letter to leading members of Congress—informing them that the FBI had discovered a new trove of emails involving Clinton’s private email server but that “the FBI cannot yet assess whether or not this material may be significant”—whanged into the presidential contest, stunningly and alarmingly. Why was the FBI entering the scene so close to the election? The FBI agents hadn’t yet read the emails—they needed a search warrant, which they didn’t get until two days later—but apparently some of the emails were addressed to or from Hillary Clinton’s private server, the damn spot on her effort to become president of the United States.
From what we know, there’s no reason to think that Comey intended to weigh in on the election in a way that helped one candidate or the other, but it’s hard to comprehend that he didn’t realize that his move might do just that. The excuses offered for why he did it don’t hold up to scrutiny. Pundits reasoned that “he was damned if he did and damned if he didn’t”—that he might be accused of covering up important information until after the election. But this wasn’t about him. FBI directors have to take the heat. They are disposable.
It was also explained around Washington that if Comey hadn’t informed Congress, restive FBI agents would have leaked that they had discovered new emails. Agents who were discontented with Comey’s decision last summer not to prosecute Clinton and were battling Justice Department officials over whether they could investigate the Clinton Foundation were leaking like mad to the press—particularly to a Wall Street Journal reporter. But to disclose, simply for fear of leaks, information about an investigation that might be damaging to an innocent figure—who has no idea what the agency knows and therefore cannot defend herself—is a testimonial to ineffective management, not a legal principle.
Some Republicans and their allies in the pundit class took to saying that the FBI “must have something big” on Clinton or Comey wouldn’t be resuming the investigation. But the FBI agents and Comey, prohibited from reading the discovered emails until they got a search warrant, apparently had no idea what they contained. For all the FBI knew, the emails pertaining to Clinton may have been duplicates of ones that they or State Department experts on classification had already examined.
The agents who’d briefed Comey the day before his letter had seen only the sender’s and recipient’s addresses on some of the roughly 650,000 emails found on the laptop of Anthony Weiner, the painfully disordered former Democratic member of Congress from New York. (Weiner had wooed and won the elegant Huma Abedin, Hillary Clinton’s longtime close assistant, but had the unfortunate habit of sending pictures of his erections to various women, in the current instance, to a fifteen-year-old—the idiocy that landed him and his laptop in the hands of the FBI.) Abedin has told people she was unaware that her emails were on Weiner’s laptop and was puzzled about how they got there.
Comey’s decision to send the letter suggested he feared that not informing Congress would rile congressional Republicans. But it also suggested that he was putting concern for his own reputation above a fair process, while potentially affecting a presidential campaign in its final days. One can only conclude that Comey’s serial acts in the by now wildly inflated case of Clinton’s use of a private email server—there’s been no indication that national security was compromised—were those of a man who lacked the courage to stick with his own convictions.
Comey had already long showed questionable judgment in the way he’d pursued the case: in his press conference in July, when he announced that he wasn’t recommending prosecution of Clinton, Comey offered ex-cathedra comments about Clinton, which was highly irregular. He first announced that, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” Even that statement was heavily freighted. But then he proceeded to further damage the reputation of the person whose acts he’d just said didn’t warrant prosecution, describing in some detail behavior that he said amounted to “extremely careless in their handling of very sensitive, highly classified information.”
By doing something prosecutors simply don’t do, Comey set a dangerous precedent. Any number of prosecutors might conclude later that if it was OK for the FBI director to damage the reputation of a person who had just been let off without prosecution (or in Clinton’s case damage it further), they could feel free to follow suit. Anyone who wasn’t troubled by Comey’s performance wasn’t thinking through its implications. One could only conclude that his comments were meant for various audiences not in the room: the Republican-dominated Congress and conservative Hillary-haters among the commentariat, and discontented FBI agents who’d wanted him to rule the other way.
In any case, Comey’s self-protective gambit failed, and he was immediately called to testify about his decision before the House Oversight and Congressional Reform Committee, a highly partisan group even as Congress goes. Rather than stick with the appropriate refusal to comment on a prosecutorial decision, Comey fed them more material for attacking Clinton, saying, fatally, that if anything new arose, he would inform them. Though Congress has an oversight role over federal agencies it has no right to meddle in a prosecutorial process or judgment. Consider where that might lead: prosecutors tailoring their decisions so as not to anger certain powerful forces—which isn’t far from where Comey has taken us.
Following all the noise made by Republicans on Capitol Hill—Speaker Paul Ryan suggested, irrelevantly, that Clinton’s national security briefings be stopped—a poll taken at the time unsurprisingly found that 56 percent of the public believed that Clinton should have been prosecuted. They wanted a public stoning of the person whom they fervently believed shouldn’t have been let off. (“Lock her up,” chanted crowds later at the Republican convention and Donald Trump’s rallies.) Judicial decision by plebiscite—in effect mob rule—is pretty frightening. The founders wrote the Constitution to protect us from that.
The public’s negative reaction to Comey’s decision not to prosecute was all the more understandable in light of the insinuation by numerous commentators that some nefarious plot had caused him not to recommend prosecution. Bill Clinton’s foolish amble over to Attorney General Loretta Lynch’s plane parked at the Phoenix airport just a few days before the decision was announced gave them a tool, and it became the subject of highly fanciful interpretation.
To believe that Bill Clinton’s decision to chat up Lynch had anything to do with Comey’s recommendation not to prosecute requires that one conclude several things: that Clinton persuaded the attorney general of the United States to go easy on his wife and that in turn the attorney general pressured the director of the FBI, who had been intending, this theory has to go, to prosecute Hillary Clinton, not to do so, and that the proud and distinguished director of the FBI meekly accepted the attorney general’s instruction. That such a far-fetched plot couldn’t go without detection—too many people would know about it—didn’t discourage critics from employing it as an “explanation” for Comey’s decision, and it’s still being trotted out. (Knowing what I do about Bill Clinton it’s most likely that he thought he could work that ole Bubba charm on Lynch; he’s not so stupid as to have thought he could make an outright request to the attorney general not to prosecute his wife.) That it’s common sense that one doesn’t prosecute a presidential candidate except for serious crimes wasn’t something that Comey wished to say and it didn’t enter into the conspiracy theorists’ thinking.
Lynch made two big mistakes. The first was more understandable: when the former president of the United States comes to pay you a visit it’s awkward at the least to tell him to go away. But then she made a bigger and more consequential error. Experienced prosecutors and former Justice Department officials tell me that if Lynch felt compromised by Bill Clinton’s airport visit, as she did, she should have handed off the case to the deputy attorney general or the head of the department’s criminal division. Instead, she announced that she would accept whatever the FBI director decided. This caused the fire to be directed at Comey for his decision not to prosecute.
Numerous reports indicate that, before Comey sent his letter last week, Lynch and other senior Justice officials argued against informing Congress that the FBI was resuming the investigation. They said that Comey would be violating a decades-old Justice Department policy not to take actions that can affect an election within sixty days of the final vote. They also pointed out that the department, under which Comey officially serves, doesn’t comment on ongoing investigations. But Comey was unmoved and Lynch, perhaps still sensitive about the negative reaction to her chat with Bill Clinton, was reluctant to force the issue. So now we had a timorous attorney general hesitant to overrule a self-serving and cowardly FBI director. That’s not a reassuring situation.
Comey did two other things in the course of the Hillary Clinton investigation that were highly problematic. First was his promise in his July testimony that he’d inform Congress if anything new pertinent to the case came up. Then, in early September he released FBI documents from the investigation, taking Congress further into the labyrinth of the various things the FBI had turned up about how Clinton and her associates had handled their State Department email, much of it unflattering to Clinton. This went beyond even his unwarranted comments about her when he announced his decision not to prosecute. If prosecutors can do these things there are no protections for any individual who’s been or is being investigated.
In the days since his extraordinary letter, Comey has come under heavy bipartisan fire: former Republican Attorney General Alberto Gonzales, who had served under George W. Bush with Comey as his deputy, said that Comey had made an “error in judgment”; Gonzales added that he was “somewhat perplexed about what the director was trying to accomplish here.” He explained why the argument that Comey might be accused of “covering up” information didn’t hold up: “If you delay the announcement, hopefully it’s not going to jeopardize an investigation, it’s not going to jeopardize the pursuit of justice, and voters will have the opportunity to vote on Election Day without information that may in fact be incomplete or untrue.” As for Comey’s insistence on going ahead with the letter despite Justice Department opposition, Gonzales said, “My experience is, is that once he takes a position, he digs in, and he’s just not going to move from it, whether he’s wrong or not.”
Michael Mukasey, who also served as attorney general under George W. Bush, said, “This wasn’t Comey’s call. It is not his function as director of the FBI to decide who gets charges and doesn’t. It’s his function to gather evidence. And he didn’t fulfill that function very well.” Mukasey also said, “I don’t think he should have been in this fix. I don’t think he should have put either himself or the bureau or the Justice Department in this fix.” Bill Weld, a liberal Republican and former head of the Justice Department’s Criminal Division in the Reagan administration as well as two-term governor of Massachusetts, now running for vice president on the Libertarian ticket, called Comey’s letter to Congress “disgraceful.” As for Democrats, Eric Holder, Obama’s first attorney general, under whom Comey had worked as FBI director, said, “Good men make mistakes. In this instance, he has committed a serious error with potentially severe implications.”
On Wednesday, the president expressed his own concerns about the Comey affair, saying, without mentioning the FBI director by name, “I do think that there is a norm that when there are investigations, we don’t operate on innuendo, we don’t operate on incomplete information, we don’t operate on leaks. We operate based on concrete decisions that are made.” And he pointed out that such a decision had been made by Comey in July. (Though Obama was understood to be upset with Comey’s action he was reluctant to be very hard on him, reportedly out of concern that if Comey came under too much fire it might lead to the appointment of a special prosecutor, about the last thing he and Clinton want.)
The reaction on Capitol Hill against Comey’s action has also come from members of both parties. Chuck Grassley, the Republican chairman of the Senate Judiciary Committee, said that he didn’t necessarily object to Comey’s sending the letter but said, “Unfortunately, your letter failed to give Congress and the American people enough context to evaluate the significance or full meaning of the disclosure.” He added that the lack of further context was “not fair to Congress, the American people or Secretary Clinton.”
On the House side, outrage came from surprising quarters. The almost wildly conservative Joe Walsh of Illinois—the Walsh who, after police were shot in Dallas, said, “Watch out Obama. Watch out Black Lives Matter punks. Real America is coming after you”—tweeted, “Look, I think Comey should have said prosecute her back in July. But what he just did 11 days b4 the election is wrong & unfair to Hillary.” Jim Jordan of Ohio, the chairman of the Freedom Caucus, the most conservative group in the House, said on Fox News, “I think this was probably not the right thing for Comey to do—the protocol here—to come out this close to an election, but this whole case has been mishandled and now it is what it is.” And no less than the “architect” of the Republican Party’s move to the right, Karl Rove, tweeted that Comey was “wrong in July and was wrong on Friday.”
Harry Reid, the retiring Senate minority leader, charged that Comey had violated the Hatch Act, a law that prohibits executive branch employees from participating in electoral politics. In a letter to Comey, also intended for the public of course, Reid wrote, “In tarring Secretary Clinton with thin innuendo, you overruled longstanding tradition and the explicit guidance of your own Department. You rushed to take this step eleven days before a presidential election, despite the fact that for all you know, the information you possess could be entirely duplicative of the information you already examined which exonerated Secretary Clinton.”
Perhaps the most thorough and devastating critique of Comey’s conduct came from Rhode Island Senator Sheldon Whitehouse, a member of the Judiciary Committee and a former state attorney general and US attorney, who wrote in The National Law Journal on October 31 about the principles he said honorable prosecutors followed. Regarding Comey’s comments in July about Clinton’s handling of email, Whitehouse wrote: “The only derogatory information we disclosed about a defendant was evidence we described in the charging document. The obvious corollary: no charges, no derogatory information.” When it comes to talking to Congress about a case, Whitehouse said: “Lawmakers’ political interest in an investigation is not a reason for disclosure; it’s a reason against disclosure. I would never answer questions from a legislator about evidence in any criminal investigation, particularly a politically fraught one.” He also said, in response to Comey’s explanation that he’d told the congressional committee that he’d inform them if new information arose, “Even if a prosecutor had told Congress something about an ongoing investigation, and facts later changed, there is no duty to update.” He continued, “If important new evidence became public after an investigation was closed, you could assure the public you were aware of it and would treat it appropriately.”
In a major development on Wednesday afternoon, both Chuck Schumer, the next Senate Democratic leader, and Nancy Pelosi, the House Democratic leader, no doubt recognizing that Comey responds to pressure, had at him. Schumer, whose possible Senate leadership may have gone down the drain and who had once championed Comey, said, “I do not have confidence in him any longer,” and called the decision to send the letter “appalling.” Schumer, who doesn’t have a light touch, said that after the election he wants to have a talk with Comey. Nancy Pelosi said, ominously, “Maybe he’s not in the right job.”
It’s somewhat painful to watch this once towering official, a Republican appointed by Obama and respected by members of both parties, become, by his own acts and misjudgments, a figure of such widespread scorn. It must be excruciating for him. The odd thing is that it was so clear what the norms are for dealing with the situation Comey found himself in, and yet he miscalculated at every step. One wonders if he understands what went wrong and how long he’ll remain in the job.
It’s clear that Comey has been, with difficulty, trying to lead a deeply riven bureau and, apparently, agents prepared to sabotage him because of his decision not to recommend prosecution of Clinton. This is a disturbing situation, but it’s for the FBI director to manage without jeopardizing fair treatment of someone who’d been investigated. There’s something of a culture clash between numerous FBI agents and at times the director and usually the Justice Department. FBI agents have often come from Catholic middle-class families and many have gone to Fordham, while the director, at least in Comey’s case, and high Justice Department officials tend to have come from top law schools and practiced law in tony firms. Nothing other than respect for or fear of the director can keep FBI agents from leaking to reporters and Capitol Hill. This is one of those times when we’re reminded how dangerous a weak or overly righteous and self-protective person can be.
Exactly a week before the election the FBI did another very odd thing, especially in light of the reaction to Comey’s letter. In a tweet from a very recently revived Twitter account, the agency let it be known that it had just released the files containing information from its investigation of Bill Clinton’s pardon, just as he was leaving the presidency, of the fugitive financier Marc Rich, one of his most controversial acts. (As US attorney in New York, Comey had led that investigation, which didn’t result in a prosecution.) The FBI explained that it was simply an accident of timing that the documents were released when they were, pursuant to a freedom-of-information request. That may have been the case but it was most unhelpful to Hillary Clinton.
Trump welcomed the news of Comey’s letter as if it were a gift from the gods, which, in a way, it was. “This is worse than Watergate,” Trump cried. (No, it isn’t—it doesn’t come at all close to the pattern of illegal and menacing activity spurred by the Nixon White House that had begun in an effort to assure the president’s reelection in 1972: the hiring of thugs to destroy the reputation of any potentially strong opponent to Nixon, and the real threat to constitutional government.) As for Clinton’s reaction to the letter, after a few hours of perhaps stunned silence, she took Comey head-on. The hope was that this would help rally her supporters.
It was perhaps inevitable that once Comey violated the code against taking an action within sixty days of an election the Democrats would press openly for him to reveal something about the investigation the FBI was understood to have been conducting about alleged ties between the Trump campaign and the Russian government. If such evidence exists there’s a good argument the public should know about it. But on Monday, The New York Times reported that the agency hasn’t found any direct links between Trump’s campaign and Moscow. (Even indirect would be worrisome.) In late October, seventeen US intelligence agencies—including, ultimately, the FBI—said that Russia was behind the hacking of Democrats, including the Democratic National Committee. (Trump, whose attitude toward Russia has been all over the lot—he’s close to Putin, he doesn’t know him—reacted by saying that the US “has no idea who’s behind” the hacking.) Russia is widely believed to have been supplying WikiLeaks for its stream of disclosures of emails that could be damaging to Clinton’s effort, most spectacularly from the laptop of John Podesta, the chairman of her campaign. (The targeting of Podesta, one of those who doesn’t erase old emails, was quite shrewd, and knowing.)
But while the WikiLeaks disclosures have contained information embarrassing to the Clintons—particularly about how donors to their foundation were hit up by one of Bill Clinton’s more unsavory associates, Doug Band, to provide the former president with lucrative speaking engagements and consulting jobs—it hasn’t shown actual instances of corruption of the foundation or that Hillary Clinton’s policies as secretary of state were affected by donations. Greed is a dangerous quality in a politician.
If a connection, however direct or indirect, between Donald Trump’s presidential effort and Russia were found, that would be the second most explosive story out of this election. The first would be if FBI director Comey’s blundering into the election cost Clinton her expected victory. There are signs it has already had an effect. US presidential elections tend to tighten as election day approaches, but this time something else may be going on. On Tuesday, Sam Wang, a Princeton professor who runs the Princeton Electoral Consortium, told me that a narrowing of the race by about two percentage points since October 24 coincides with Comey’s action and probably reflected it to some degree. Amy Walter of The Cook Political Report wrote on November 3, “Now, with the focus more on Clinton’s emails than on Trump’s debate performances or his Twitter spats, states like Iowa and Ohio are moving back in Trump’s direction.”
The revival of the email issue, which was thought to have gone away, raised the greatest danger to Clinton’s campaign: a loss of voters’ enthusiasm for her. As of this writing, though Trump has gained in the Electoral College as well and may have more than 240 electoral votes, getting to 270 is still daunting for him, but he no longer lacks paths for doing so. Clinton and Trump are still fighting over the states that have always been considered essential for a victory in this election: Florida, North Carolina, New Hampshire, Nevada, and to a lesser degree Pennsylvania (where Clinton’s lead is more solid than in the rest). And Trump is going for victories in states that had been considered safely in Clinton’s column: Michigan and Wisconsin, which both have a relatively high proportion of white working-class voters. The candidate who’s seen to be gaining shows new energy and stirs still more excitement. That’s the basis for the political cliché, “momentum,” which was what Trump seemed to have after the Comey letter. Trump has come alive. (In his excitement he still says strange things: “I predicted Ooma”—his pronunciation of Abedin’s first name—and “I predicted Take the oil,” whatever that means. In Florida on Wednesday, in an echo of George H. W. Bush’s famous “Message: I care,” Trump gave himself direction: “Stay on point, Donald, stay on point.”)
If the election outcome were to turn out to have been decided by the FBI’s mishandling of the Clinton email issue, it would be one of history’s great ironies, almost Greek in its mythic aspect: that a candidate was brought down by an act that she was never prosecuted for. But there’s still time for one more upheaval in the campaign between now and election day.
Part of Elizabeth Drew’s continuing series on the 2016 election.