Comey wasn’t defending justice system

FBI Director James Comey’s defenders say he was between the proverbial rock and a hard place after he learned last week of additional emails that might or might not be relevant to the closed investigation of Hillary Clinton: If it came out after the election that these emails were relevant, he would have been accused of hiding the ball.

That’s not a rock and a hard place — it’s Comey trying to protect himself from second guessing.

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If he had not sent his content-free letter to members of Congress and was asked after the election why the potential for more information was not disclosed, he would/should have answered as follows:

“I literally had no idea what was in the emails. It therefore would have been impossible to determine if they were significant — or even related to Hillary Clinton at all. We did not even have a warrant until Oct. 30. We do not make announcements about the potential for discovery of more information that might or might not have relevance to a past investigation. There is a reason why the FBI does not comment on ongoing investigations. It is why the Justice Department does not even bring indictments before an election; indictments contain allegations, but these are not proven. And here we didn’t have enough even to make an allegation. It would therefore be prejudicial and highly unfair to put that out, especially less than two weeks before an election.”

Comey did not do that because, according to news reports, he’s been smarting under brutal fire from Republicans since deciding not to recommend a prosecution back in July. Well, to that we say: Tough. It’s not his job to try to silence outrage. It’s certainly not his job to do a “make good” for one side by overcompensating in its direction when a new issue comes up. That’s politics, not justice.

Alternatively, as Alan Dershowitz recommends, he could have sent a letter that made clear there could be no presumption of any adverse information concerning Clinton. (“Neither I nor my investigators have seen these emails. At this time, we have no idea whether they are duplicates of what has already been produced or whether they contain any information pertinent to the investigation of Hillary Clinton’s emails. We simply do not know. Nobody should presume therefore that there is anything pertinent to our investigation, or incriminating, in any of these emails.”)

The letter Comey sent to FBI later on Friday suggests he recognizes to some extent that he blew it. It reads in part: “Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed.” That’s extraordinary: He admits this was not in keeping with policy, but he chose to cover for himself anyway, lest he later be accused of misleading Congress. (He never would have been in this position if he had not agreed to testify about a decision not to recommend prosecution, a step many nonpartisan legal experts criticized.)

Comey told his employees that “we don’t know the significance of this newly discovered collection of emails.” He adds, “I don’t want to create a misleading impression.” But of course he did just that, which is why he chose to write to his employees later in the day.

Jack Goldsmith, who confronted a firestorm in the George W. Bush administration concerning the legality of national security surveillance measures, and Ben Wittes of Brookings write that Comey’s actions violated department guidelines:

“Here Comey opened a new set of questions about one of the major party candidates with 11 days to go in the campaign — questions he has all but said he can’t answer yet. Doing so offers an open-ended opportunity for Clinton’s opponents to make inferences about her conduct. And Trump has done exactly that, saying (Friday) ‘they are reopening the case into her criminal and illegal conduct that threatens the security of the United States of America. Hillary Clinton’s corruption is on a scale that we have never seen before.’”

The authors add, “Comey is on a slippery slope of sorts, in which each disclosure necessitates the next disclosure and draws the FBI further and further away from Justice Department norms designed to keep law enforcement out of election campaigns.”

The authors contend that Comey is not “political.” Perhaps he is not partisan, but he certainly played a political game to protect himself. He was not willing to follow the rules to prevent interference with democratic elections — intended for this precise situation — because he was so concerned with his own problem with Congress.

Incidentally, this situation was a classic conflict of interest. Avoiding personally getting crosswise with Congress ran headlong into the impartial administration of his duties. In such a situation the honorable thing to do would have been to quit. And that is what many will no doubt urge him to do after the election.

This story was originally published November 1, 2016 at 5:00 PM with the headline "Comey wasn’t defending justice system."