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On Friday, FBI Director James Comey sent a three-paragraph letter to several members of Congress, in which he said that new emails related to the Hillary Clinton email investigation had been discovered.
The timing of Comey’s letter — sent just 11 days before the presidential election — created a media and political firestorm, and seemed to pose the prospect of some sort of smoking gun deeply implicating Clinton that could swing the election.
But as more facts have emerged after hours of leaks from anonymous government officials to various media outlets, it’s become pretty clear that what actually happened is not necessarily all that earth-shaking. Namely:
- The new batch of emails is from a laptop that Clinton aide Huma Abedin shared with her husband, former Congress member Anthony Weiner.
- The FBI came upon them because it’s investigating Weiner’s reported sexting of an underage girl, not anything related to the Clintons.
- The FBI doesn’t seem to even really know what’s on the new emails yet. They could well be duplicative of emails the bureau has already examined.
- And there are conflicting reports about whether any of them are even from Hillary Clinton.
As a result, Comey has fallen under intense criticism for his handling of this public disclosure.
First, he’s been blasted for even making such a statement when the longstanding policy and practice at the Department of Justice has generally been to avoid commenting on ongoing investigations generally, and especially to avoid making moves in the days before an election that could swing the outcome, as the New Yorker’s Jane Mayer reports. Indeed, Mayer writes that Comey made this disclosure against the advice of Attorney General Loretta Lynch, who argued that it violated DOJ policies.
Second, Comey has gotten criticism from both the left and the right for how remarkably vague his letter was. If he was going to make such an unusual disclosure, the argument goes, he should have been more upfront about the details rather than letting them be aired through anonymously sourced leaks. Indeed, both Republican Senate Majority Whip John Cornyn and Clinton campaign chair John Podesta are demanding more disclosure.
Comey, of course, had reasons for what he did — some of which look to be more sympathetic than others. He told FBI employees that he felt “an obligation” to update his previous congressional testimony that suggested that the bureau had completed its review of the email matter. He could well be trying to protect the FBI’s reputation for independence after facing months of criticism from the right, and even reportedly from some in his own ranks. He may have been trying to avoid future political criticism for not revealing this information before the election. And he reportedly thought the news was bound to leak anyway.
Still, even though there was almost certainly no way Comey could have satisfied everyone, what he has ended up with is a very big mess indeed.
The background: Comey’s decision to publicly reveal so much about this investigation was very unusual
In one sense, the explanation for why Comey decided to send this letter just 11 days before the election is simple.
Comey said in his letter to Congress that he was briefed on the discovery of the new emails in the Weiner investigation Thursday. His previous testimony to Congress suggested that the FBI had already completed its review of Clinton emails. But now the bureau had gotten some new emails, so Comey wrote to FBI employees that he felt “an obligation” to update his testimony by sending this short letter to Congress.
And according to one report from Newsweek, he may actually have been legally required to inform Congress under DOJ rules — though it doesn’t necessarily seem that he’d be obligated to do so before the election, and Comey himself did not cite any legal requirement in his note to FBI employees.
The broader context, though, is that all of this is flowing from Comey’s months-old decision to publicly reveal a remarkable amount of information about an investigation that resulted in no charges for anyone — something the FBI almost never does.
This dates back to Comey’s public announcement on July 5 that he would not recommend any charges in the Clinton email matter, because “our judgment is that no reasonable prosecutor would bring such a case.”
But Comey didn’t stop there. He went on not only to explain his reasoning at length but often to offer his opinion — stating that Clinton and her top aides had been “extremely careless in their handling of very sensitive, highly classified information." Soon, he appeared before Congress and gave many more details, under oath. And in response to Freedom of Information Act requests, he started releasing batches of internal FBI documents related to the case, in a stated effort to be transparent.
Much of this was very unusual. Generally, the FBI decides whether to recommend charges in a case, and the Justice Department decides whether to file charges. And if charges are not filed, that’s the end of the story.
Now, it’s easy to understand why Comey decided to publicly reveal so much about the investigation — this is a deeply unusual case. It involved the Democratic nominee for president of the United States and the favorite to win the general election. Comey was serving in a Democratic administration and bound to face questions about his impartiality.
Furthermore, Lynch had been intensely criticized for taking a meeting with Bill Clinton when their respective planes were both waiting on a tarmac earlier this summer, when the case was still unresolved. As a result, Lynch had already announced that she would comply with Comey’s recommendations in the Clinton email case, whatever they might be.
As a result, Comey seems to have felt pressure to make an unprecedented effort to defend his decisions as fair and without undo favoritism. And indeed, it may not have been politically tenable for him just to release a brief statement saying he wouldn’t file any charges in the case.
Yet as Benjamin Wittes — a senior fellow in governance studies at the Brookings Institution who overall agreed with Comey’s behavior but worried about the precedent it would set — wrote at Lawfare in July:
There is something horrible about watching a senior government official, who has used the coercive investigative capacities of the federal government, make public judgments about a subject's conduct which the Justice Department is not prepared to indict... We give the FBI these powers so that it can investigate crimes. And if the Justice Department is not going to prosecute someone, it generally has no business talking about the conduct of that person's affairs.
But this week’s letter is even more unusual, since Comey says he doesn’t even know whether the new emails are significant — and because it comes so close to an election, and is so vague
The above discussion of Comey’s conduct, of course, was in the context of an investigation that was thought to have concluded. Comey was describing, to the public and to Congress, conclusions he and the FBI had already arrived at.
But his new letter is a step beyond even that. Rather than informing Congress about a completed investigation, he’s now updating them about a new development that he himself says he doesn’t yet know the importance of. “We don’t know the significance of this newly discovered collection of emails,” he wrote in a note to FBI employees obtained by the Washington Post’s Sari Horwitz.
Indeed, former Assistant US Attorney Nick Akerman argued to Politico that "it is not the function of the FBI director to be making public pronouncements about an investigation, never mind about an investigation based on evidence that he acknowledges may not be significant.” He added: “This is particularly egregious since Secretary Clinton has no way to respond to what amounts to nebulous and speculative innuendo.”
Furthermore, Comey made this announcement 11 days before a presidential election, when it’s long been general Justice Department practice to be careful about taking actions that could be construed as interfering with any elections.
Mayer, of the New Yorker, reports that four years ago, then-Attorney General Eric Holder sent a memo to all Justice employees making clear that they should be extra careful about “the timing of charges or overt investigative steps near the time of a primary or general election,” and should consult the Public Integrity Section of Justice’s Criminal Division if they had questions.
And finally, Comey’s letter has also drawn criticism for being so remarkably vague — to the point where both Republican Senate Majority Whip John Cornyn and Clinton campaign chair John Podesta are demanding that he release more information.
The practical consequence of Comey’s vagueness is that our understanding of this potentially very significant matter in the final days of this campaign is being shaped almost entirely by anonymously sourced leaks from government officials — hardly a model of transparency.
Indeed, Comey himself seems to be well aware of this problem, writing in his note to FBI employees that he didn’t want to create a “misleading impression” because he wasn’t yet sure how important the new information was, and somewhat defensively adding, “[I]n the middle of an election season, there is significant risk of being misunderstood.” (Naturally, we only know of the note because it was leaked.)
The case for Comey: He’s in an impossible position and had no good options
Many reports quoting defenders of Comey have tended to argue that he had no good options after he was briefed on the newly discovered emails Thursday, and that does indeed appear to be the case.
Comey does seem to have boxed himself into a corner somewhat with his actions over the past few months, when he decided to disclose so much about the investigation publicly and to Congress, and when he said he’d inform Congress if there were further developments.
Newsweek’s Michele Gorman and Matt Cooper make the case that Comey “didn’t have a choice” about telling Congress. “Because the new information followed his sworn testimony about the case, Comey was obligated by Department of Justice rules to keep the relevant committees apprised,” they write. “Once he learned that there were new emails that required examination, Comey had to notify Congress that he had to amend his testimony because it was no longer true.”
Still, it’s not clear that he would have been required to inform Congress immediately, particularly in the face of that potentially conflicting DOJ guidance cautioning against taking “overt investigative steps” before an election. And it’s noteworthy that Comey did not claim to have such a legal obligation in his note to FBI employees, instead writing, “I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed,” and “I also think it would be misleading to the American people were we not to supplement the record.”
What may have made the situation more pressing is that Comey seems to have expected that even if he said nothing, someone in the FBI would have leaked the information before the election anyway, according to Horwitz.
And finally, there is the bigger-picture potential motivator — that Comey is acting to try to preserve both his and the FBI’s reputation for integrity and independence.
A Republican for most of his life who worked in George W. Bush’s administration, Comey has been harshly criticized by Republicans since he announced he wouldn’t recommend any charges in the investigation back in July. Donald Trump, for instance, tweeted that the lack of charges revealed that the system was “rigged.” Furthermore, Comey has been dogged by anonymous reports in conservative outlets that at least some within the FBI are deeply unhappy with his handling of the Clinton case.
In this context, if Comey had sat on this information until after the election, he would surely have been raked over the coals by Republicans once it was discovered — even if the new information didn’t turn out to be important, he would have been accused of a cover-up. That may be why an anonymous “senior law enforcement official” told NBC News that Comey sent the letter "out of an abundance of caution.”
For his trouble, however, he’s now under the gun from the Clinton campaign — top Clinton aides concluded in a Saturday morning conference call that “their best strategy would be to go on the offensive against the F.B.I. director’s conduct,” the New York Times’s Patrick Healy and Jonathan Martin report. Podesta said later that Comey “has not been forthcoming with the facts.”
So even if Comey was trying to preserve the FBI’s reputation for independence, he has unmistakably ended up in a political mess.
