Since FBI Director James Comey released that conspicuously vague three-paragraph letter last Friday, the political world has been abuzz over its implications. Will it damage Hillary Clinton? Will it push the mythical “undecideds” into Trump’s camp? Does it even matter?
The politics of this are muddled. But equally interesting are the legal questions surrounding Comey’s decision to publicly notify Congress of his discovery of new and potentially pertinent emails.
Is there a precedent for this kind of action fewer than two weeks before an election? Was Comey legally obligated to do what he did? Is it consistent with Department of Justice policy? Did he compromise himself and the FBI by going public? Is there any chance of resolution before election day?
To get answers to these questions, I reached out to Justin Shur, a former federal prosecutor for the Department of Justice. From 2008 to 2012, he served as deputy chief of DOJ’s Public Integrity Section, which is tasked with prosecuting public corruption cases across the country.
Our conversation, edited for concision and clarity, follows.
As a former federal prosecutor, what was your response to Director Comey’s letter on Friday?
Well, it's clearly contrary to long-standing DOJ policy. I have great respect for the director; there's no one in my view more qualified for the job than James Comey. He's truly a talented lawyer and his dedication to public service is unsurpassed.
But his decision is inconsistent with DOJ policy and procedures. I mean, first, the DOJ and the FBI simply do not discuss, publicly at least, ongoing investigations and what investigative steps they may or may not take. Especially when the investigation involves a candidate running for office
That he did so a few days before the election is stunning.
Is there anything like a precedent for this?
No. The DOJ policy that I've seen referenced when this story broke discusses the sensitivity around public corruption investigations and prosecutions. You might be familiar with this policy, which basically says: If it can be avoided, the DOJ and FBI should not do something publicly, such as bringing indictment or taking some overt investigative steps, if it may have a juristic impact on the outcome.
I think that policy can be challenging for prosecutor because when it comes to the timing of bringing a case, especially on the eve of an election, there are always difficult choices. Its’s a damned if you do, damned if you don’t scenario.
I know people have said that Comey’s in a similar situation here, but I think this is different for a number of reasons. Number one, we are not talking about the timing of bringing a case — all we're talking about is reviewing additional emails. So this is not what people would say is an overt investigative step, meaning it's not as if the only way it could review these emails is by making the review public.
The fact that the FBI has decided to review additional emails, at least in my view, is not the type of material information that voters would feel deprived of if they hadn't learned of it before the election. And the director himself has said that the FBI has not concluded whether or not any of these emails are significant.
What are voters supposed to do with this? Doesn't really add anything to the mix, doesn't provide them with any concrete information. It could be something; it could be nothing. All it does, as we've seen, is create speculation and become political fodder which the DOJ and the FBI is not in the business of doing.
So you don't buy this argument that Comey was between a rock and a hard place, that this was his least terrible option?
I don't. To be honest, I don't think he’d be in this situation if he hadn't held a press conference in the first place. It just confirms why the DOJ policy exists in the first place.
I think the Director basically has good intentions, meaning he’s probably trying to increase transparency into the process by making these public disclosures. And I suspect he believes that will in turn increase the public's confidence in the system.
But the unfortunate reality is that I don't think that’s what he’s done here. If they're looking to increase the public's confidence in the process, it's important that in a high-profile investigation like this one, that you handle it like you would any other investigation.
Was Comey under any legal obligation to do what he did? By any interpretation, was he obliged to make public this new information?
No, I don't think he was compelled under any provision of a law of which I’m aware.
What did you think of the substance of the letter? What struck me was how vacuous it was. It was just an empty gesture, a big blinking question mark. It revealed nothing new or concrete.
Why go public if there’s nothing definitive to report, knowing it will only fuel reckless speculation?
I think what triggered it was Comey’s desire to keep Congress apprised of any new information, however speculative or trivial. And so I assume that he felt that it would be misleading to not supplement or update things.
But I think he would've never been in that situation to begin with if he hadn't given that press conference over the summer, which was highly unusual. I mean, the FBI doesn't make charging decisions. The Bureau makes a recommendation to DOJ about charging decisions. It's a partnership between the agents and prosecutors working together, but the DOJ has the final call.
The press conference where he publicly disclosed the FBI's recommendation before even telling DOJ what that recommendation was, and before DOJ had any decision, was very unusual.
And so I think it has created this unusual situation.
Comey staged that initial press conference because, in his words, the case was of inordinate interest to the public.
Is there any legal basis for that line of reasoning? How could he — or anyone, possibly — determine what the proper threshold of public interest is?
Look, this is certainly not your typical case: you've got a candidate for president of the United States involved in a very public investigation. But there's no precedent or requirement that, if there's a certain threshold that's passed in terms of public interest, that the FBI must come forward and hold a press conference and discuss the investigation.
Is there any reason to think Comey would not have done this unless he had good reason to believe there was something incriminating in the new emails?
I don't think so. Again, I think it was really triggered by this open dialogue between the FBI and Congress, which Comey started.
We’re roughly a week away from the election as of today. Do you see any scenario in which Comey will be able to clarify this before next Tuesday? I don’t imagine a week is enough time to draw any definitive conclusions.
I know this is not really a satisfying response, but it depends. With something as significant as this, in terms of the high-profile nature of the investigation, and the fact that the election is only a week away, they could staff it with a number of agents and look through these emails, and decide what they mean or what they don't mean in order to resolve this.
I think it’s certainly possible that the emails will raise certain questions, however insignificant, which would require interviewing new people, in which case it will be quite a while before a determination is made.
I’ll put this bluntly: If there wasn’t a legal obligation here, was Comey just looking to cover his ass?
I don’t think it was made for political purposes, including the need to cover his ass. I think it was a product of having gone down a road where you’re updating Congress and to deviate from that would have been risky moving forward.
And I think that’s probably ones of the reasons why the FBI and Justice Department typically are not in the business of holding those types of press conferences and publicly disclosing the internal deliberations that led to charges.
Does this investigation, and the way it’s been handled, damage the credibility of the FBI and the Department of Justice as an independent institution?
I hope not. At the end of the day, I think this is just a unique situation and one that will always be a sort of outlier and not the norm in terms of how the Department handles these types of matters.
I worked at the DOJ on various high-profile cases, political cases, and I don’t think I knew whether my colleagues were Republicans or Democrats. It was just a very equivocal place to work.
But there’s always people out there who think the Justice Department and the FBI make decisions on public corruption investigation and prosecution based on various biases. Which is unfortunate. I have to believe that the majority of people understand that these decisions are made by agents based on the facts and the law.
I don’t think that this situation is going to change that.