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Former Justice Department prosecutor: James Comey’s October surprise is “indefensible”

FBI Director James Comey, preparing to explain to Congress why he decided not to charge Hillary Clinton over her use of a private email server.
FBI Director James Comey, preparing to explain to Congress why he decided not to charge Hillary Clinton over her use of a private email server.
Xinhau News Agency/Getty

FBI Director James Comey’s decision to inform Congress that he was, essentially, reopening the FBI’s investigation regarding Hillary Clinton’s use of a private email server was a mistake. That is not to say it was done in bad faith or with bad motives. Comey’s reputation for taking a strictly nonpartisan, apolitical approach to his work is well-deserved. But the decision to release this statement just 11 days before the election seems, based on the facts as currently reported, to be indefensible.

According to his statements to Congress and to the FBI, it seems clear that Comey felt obliged to keep Congress apprised of new developments in the investigation. That is understandable. But prosecutors — and FBI directors — are not automatons. Judgment, based on experience and common sense, needs to be applied before acting reflexively. It’s now being reported that senior Justice Department officials counseled Comey against going public with this new information; that would have been the wiser course.

It is not particularly surprising that the FBI decided it was appropriate to review these emails to be sure there was nothing new or significant in them. It’s called running the evidence to ground. But, critically, no thorough review of the emails has yet taken place.

And based on the current set of facts, and on how the investigation has gone so far, there seems to be no reason to believe these emails have any evidentiary value. While it is conceivable that they might, that seems highly conjectural. The FBI has no idea whether any of these emails are even new — it is quite possible, if not likely, that all of these emails were previously reviewed.

Second, there is no reason to think that they contain any classified information. Third, even if some of the emails did contain classified information, there is no reason to assume that Secretary Clinton sent the problematic emails. (Simply receiving classified emails could not, realistically, ever create criminal liability for Secretary Clinton.)

New evidence is highly unlikely to change the legal judgment made in July

Finally, and most importantly, there is no reason to believe that the rationale Comey gave back in July for why no reasonable prosecutor would ever indict Secretary Clinton for her conduct would change based on new emails. Comey explained in his July press conference that no prosecution was viable because it is not possible to prove criminal intent. Even though Clinton made use of private servers to send emails that were classified, there is no way to prove beyond a reasonable doubt that she intended to share classified information to someone not authorized to receive it. The mere fact that she sent classified emails over private servers to people who were authorized to read such emails was not enough to show that she intended to share classified information

So even if the worst-case scenario for Clinton were to come to pass and, found amongst Huma Abedin’s emails there are other examples of classified emails that were sent by Secretary Clinton, it is extremely hard to see how that would change the original analysis that this case simply is not prosecutable.

The bottom line here is that the decision to advise Congress — based on such flimsy, unsubstantiated "evidence" — was irresponsible, given the FBI’s longstanding practice of not commenting on ongoing investigations and steering clear of any statements or actions that would appear to affect elections.

And Comey has now created an extremely awkward situation for himself, for the FBI, and for the Justice Department: Having broken with tradition in reporting vague details about an ongoing investigation, will he now offer regular updates as the FBI combs through the emails — departing even further from FBI best practices? Or does he now retreat back into silence, despite both sides calling for full disclosures?

Both paths are highly problematic: Saying nothing further allows what appears to an unfairly prejudicial impression to remain; yet commenting while the email review is ongoing creates an even greater danger of prejudice and misinformation to be used for political mischief. Neither path seems responsible, and Comey has created this problem for himself.

Some have suggested that had Comey not come forward when he did and, instead, sought to verify if the emails were, indeed, new and potentially involving classified information, that he would have faced a firestorm of criticism if news of his investigation leaked to the public.

Perhaps. But the response to that would have been to simply report the truth: It would have been irresponsible and reckless, 11 days before the election, to announce the reopening of an investigation of the Democratic nominee without having any idea if the information to be reviewed was new, relevant, or significant. That is a far more defensible position than Comey now finds himself in — having to explain why he potentially tipped a presidential race based on what may well turn out to be nothing at all new.

Peter Zeidenberg is a partner at Arent Fox and a former federal prosecutor in the Public Integrity Section of the Department of Justice.

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