James Comey has politicized the FBI, he should offer his resignation

FBI Director James Comey has politicized the FBI with his seeming need to publicly portray himself as the paradigm of ethics and judgment by editorializing on FBI investigations — something which he is expressly not permitted to do — while violating department protocols and long-standing department policies. This calls into question his professional judgment and the integrity of the FBI.

As Matthew Miller, director of the Justice Department’s public affairs office from 2009 to 2011, told the Washington Post:

“Comey has made it clear for some time that he doesn’t believe he works for the attorney general” . . . “When your boss tells you what to do, she shouldn’t have to give you a direct order. Comey believes he alone is the paradigm of ethics and judgment. He has a 10-year term, and he has decided if he wants to violate the rules, he’s going to violate the rules. And if they don’t like it, the president can fire him.”

Even conservative Fox News host Jeanine Pirro, a former prosecutor and New York county court judge, has said Comey’s letter “disgraces and politicizes” the FBI.

The Justice Department — which oversees the FBI — not only explicitly prohibits employees from interfering with elections but urges employees to avoid the appearance of interfering with elections. Politifact reports:

In August 2008, President George W. Bush’s attorney general, Michael Mukasey, sent an internal memo entitled “election year sensitivities” to employees on the department’s policies on political activities. Part of it reads:

“Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution.”

Attorney General Eric Holder resent the memo in March 2012. [The memo has been resent in 2016.]

While the memos don’t discuss limitation of timing specifically, former U.S. attorneys have alluded to an unwritten guideline about not filing cases or commenting on investigations in the 60 days before an election.

On Sunday night, more than 100 former federal prosecutors and high ranking justice department officials from both Democratic and Republican administrations signed an open letter expressing serious concerns over FBI Director Comey’s departure from long-standing department protocols:

Director Comey’s letter is inconsistent with prevailing Department policy, and it breaks with longstanding practices followed by officials of both parties during past elections. Moreover, setting aside whether Director Comey’s original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary. For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly-discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even “whether or not [the] material may be significant.”

Perhaps most troubling to us is the precedent set by this departure from the Department’s widely-respected, non-partisan traditions. The admonitions that warn officials against making public statements during election periods have helped to maintain the independence and integrity of both the Department’s important work and public confidence in the hardworking men and women who conduct themselves in a nonpartisan manner.

We believe that adherence to longstanding Justice Department guidelines is the best practice when considering public statements on investigative matters. We do not question Director Comey’s motives. However, the fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly-discovered material just days before a national election. For this reason, we believe the American people deserve all the facts, and fairness dictates releasing information that provides a full and complete picture regarding the material at issue.

Jamie Gorelick, who served as deputy attorney general from 1994 to 1997, and Larry Thompson, who served as deputy attorney general from 2001 to 2003, write in a Washinton Post opinion, James Comey is damaging our democracy:

[The FBI] operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election. These traditions protect the integrity of the department and the public’s confidence in its mission to take care that the laws are faithfully and impartially executed. They reflect an institutional balancing of interests, delaying disclosure and public knowledge to avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

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As former deputy attorneys general in the Bill Clinton and George W. Bush administrations, we are troubled by the apparent departure from these standards in the investigation of Hillary Clinton’s email server. First, the FBI director, James B. Comey, put himself enthusiastically forward as the arbiter of not only whether to prosecute a criminal case — which is not the job of the FBI — but also best practices in the handling of email and other matters. Now, he has chosen personally to restrike the balance between transparency and fairness, departing from the department’s traditions. As former deputy attorney general George Terwilliger aptly put it, “There’s a difference between being independent and flying solo.”

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Having taken the extraordinary steps of briefing the public, testifying before Congress about a decision not to prosecute and sharing investigative material, Comey now finds himself wanting to update the public and Congress on each new development in the investigation, even before he and others have had a chance to assess its significance. He may well have been criticized after the fact had he not advised Congress of the investigative steps that he was taking. But it was his job — consistent with the best traditions of the Justice Department — to make the right decision and take that criticism if it came.

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As it stands, we now have real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation. Perhaps worst of all, it is happening on the eve of a presidential election. It is antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy.

Matthew Miller, director of the Justice Department’s public affairs office from 2009 to 2011, writes in an opinion at the Washington Post, James Comey’s abuse of power:

When FBI Director James B. Comey stepped to the lectern to deliver his remarks about Hillary Clinton on Tuesday, he violated time-honored Justice Department practices for how such matters are to be handled, set a dangerous precedent for future investigations and committed a gross abuse of his own power.

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[Comey’s] willingness to reprimand publicly a figure against whom he believes there is no basis for criminal charges should trouble anyone who believes in the rule of law and fundamental principles of fairness.

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[W]when the department closes an investigation, it typically does so quietly, at most noting that it has investigated the matter fully and decided not to bring charges.

These practices are important because of the role the Justice Department and FBI play in our system of justice. They are not the final adjudicators of the appropriateness of conduct for anyone they investigate. Instead, they build cases that they present in court, where their assertions are backed up by evidence that can be challenged by an opposing party and ultimately adjudicated by a judge or jury.

In a case where the government decides it will not submit its assertions to that sort of rigorous scrutiny by bringing charges, it has the responsibility to not besmirch someone’s reputation by lobbing accusations publicly instead. Prosecutors and agents have followed this precedent for years.

In this case, Comey ignored those rules to editorialize about what he called carelessness by Clinton and her aides in handling classified information, a statement not grounded in any position in law. He recklessly speculated that Clinton’s email system could have been hacked, even while admitting he had no evidence that it was. This conjecture, which has been the subject of much debate and heated allegations, puts Clinton in the impossible position of having to prove a negative in response.

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Comey argued that his statement was appropriate because this case was a matter of unusual public interest. But the department investigates cases involving extreme public interest all the time — suspected terrorist acts, alleged civil rights violations by police and possible crimes by financial institutions, for example. It is for precisely these situations that the rules exist, so that the department cannot speak outside the bounds of court when it does not bring charges.

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While Clinton shouldn’t have received special treatment, she does not deserve worse treatment from her government than anyone else, either. Yet by inserting himself into the middle of a political campaign and making unprecedented public assertions, that is exactly what Comey provided.

The entire exercise seemed designed to protect Comey’s reputation for integrity, while not actually demonstrating integrity. Real integrity is making a decision, conveying it in the ordinary channels, and then taking whatever heat comes. Generations of prosecutors and agents have learned to make the right call without holding a self-congratulatory news conference to talk about it. Comey just taught them a different lesson.

Senator Minority Leader Harry Reid (D-NV) in a letter sent to FBI director Comey alleges that by inserting himself into the middle of a political campaign he violated the Hatch Act. Harry Reid says Comey ‘may have broken the law’ by disclosing new Clinton-related emails. In fact, Richard W. Painter, a law professor at the University of Minnesota and the chief ethics lawyer in the George W. Bush White House from 2005 to 2007, wrote in a New York Times op-ed Sunday that he has filed a Hatch Act complaint against Comey with the federal Office of Special Counsel and Office of Government Ethics.

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

Such acts could also be prohibited under the Hatch Act, which bars the use of an official position to influence an election. That is why the F.B.I. presumably would keep those aspects of an investigation confidential until after the election. The usual penalty for a violation is termination of federal employment.

That is why, on Saturday, I filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics. I spent much of my career working on government and lawyers’ ethics, including as the chief White House ethics lawyer for George W. Bush. I never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.

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Violations of the Hatch Act and of government ethics rules on misuse of official positions are not permissible in any circumstances, including in the case of an executive branch official acting under pressure from politically motivated members of Congress. Violations are of even greater concern when the agency is the F.B.I.

It is not clear whether Mr. Comey personally wanted to influence the outcome of the election, although his letter — which cast suspicion on Mrs. Clinton without revealing specifics — was concerning. Also concerning is the fact that Mr. Comey already made unusual public statements expressing his opinion about Mrs. Clinton’s actions, calling her handling of classified information “extremely careless,” when he announced this summer that the F.B.I. was concluding its investigation of her email without filing any charges.

But an official doesn’t need to have a specific intent — or desire — to influence an election to be in violation of the Hatch Act or government ethics rules. The rules are violated if it is obvious that the official’s actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election.

Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position.

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This is no trivial matter. We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.

Donald B. Ayer, who served as principal deputy solicitor general and deputy attorney general under Presidents Reagan and George H.W. Bush, writes at the Washington Post, Comey’s mistaken quest for transparency:

As an experienced prosecutor, FBI Director James B. Comey knows that the government’s power to bring criminals to justice is as narrow as it is awesome. It can initiate proceedings that will put people in jail for decades, but only when it is ready and able to present evidence of guilt beyond a reasonable doubt sufficient to persuade a jury of one’s peers. Short of that, its job is to announce that no charges will be filed, and shut up. It is not the schoolmarm in chief, empowered to criticize the citizenry for perceived but uncharged digressions that fall short of chargeable crimes.

So how in July did he become a public commentator on the moral failings of Hillary Clinton’s email practices, even as he maintained without quaver that no prosecutable case could be brought? And why on Friday, in the heat of the election contest, did he decide to share with the entire country — as he must have known would happen the minute it arrived on the Hill — the totally obscure message that material “pertinent to the investigation” had been located and would be reviewed? Indeed, what gave him the conviction to so proceed, even over the reported objections of his bosses, the attorney general and the deputy attorney general?

The explanation seems to be a story of hubris rooted in Comey’s admirable personal penchant for openness and transparency.

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Comey’s struggle with the issue of transparency was resolved incorrectly. That would be obvious in any ordinary criminal investigation, where evidence and the reasons for declining prosecution are never discussed. The answer doesn’t change when the investigation bears upon a candidate for public office — here the presidency. Actually, the idea that materials gathered in a governmental investigation resolved without prosecution should, in the name of transparency, be made known in summary form when relevant for the guidance of voters is quite frightening. For that reason and others, prudent Justice Department policy has long bent over backward to avoid actions in connection with investigations or cases that might affect pending elections.

Friday’s letter, providing notice of the discovery of documents that the FBI has not yet evaluated for significance, was a further exercise in full disclosure about the status of an investigation, and is likewise an inappropriate exercise of governmental power.

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The short of it is that Comey’s quest for transparency is quite out of place in the context of his role as the decision-maker whether to recommend prosecution. The government’s job is to investigate, charge and prosecute, or announce that no charges will be brought. It has no business using the fruits of its investigation to provide commentary on the attributes of citizens, even if they are candidates for president. In failing to realize this, like many before him, Comey seems to have confused his sense of his stellar standing as a person and moral exemplar with the limits of his role as a public official.

Finally, former attorney general Eric Holder writes at the Washington Post today, Eric Holder: James Comey is a good man, but he made a serious mistake:

[I] am deeply concerned about FBI Director James B. Comey’s decision to write a vague letter to Congress about emails potentially connected to a matter of public, and political, interest. That decision was incorrect. It violated long-standing Justice Department policies and tradition. And it ran counter to guidance that I put in place four years ago laying out the proper way to conduct investigations during an election season. That guidance, which reinforced established policy, is still in effect and applies to the entire Justice Department — including the FBI.

The department has a practice of not commenting on ongoing investigations. Indeed, except in exceptional circumstances, the department will not even acknowledge the existence of an investigation. The department also has a policy of not taking unnecessary action close in time to Election Day that might influence an election’s outcome. These rules have been followed during Republican and Democratic administrations. They aren’t designed to help any particular individual or to serve any political interest. Instead, they are intended to ensure that every investigation proceeds fairly and judiciously; to maintain the public trust in the department’s ability to do its job free of political influence; and to prevent investigations from unfairly or unintentionally casting public suspicion on public officials who have done nothing wrong.

Director Comey broke with these fundamental principles. I fear he has unintentionally and negatively affected public trust in both the Justice Department and the FBI. And he has allowed — again without improper motive — misinformation to be spread by partisans with less pure intentions. Already, we have learned that the importance of the discovery itself may have been overblown. According to the director himself, there is no indication yet that the “newly discovered” emails bear any significance at all. And yet, because of his decision to comment on this development before sufficient facts were known, the public has faced a torrent of conspiracy theories and misrepresentations.

This controversy has its roots in the director’s July decision to hold a news conference announcing his recommendation that the Justice Department bring no charges against Hillary Clinton. Instead of making a private recommendation to the attorney general — consistent with Justice Department policy — he chose to publicly share his professional recommendation, as well as his personal opinions, about the case. That was a stunning breach of protocol. It may set a dangerous precedent for future investigations. It was wrong.

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I served with Jim Comey and I know him well. This is a very difficult piece for me to write. He is a man of integrity and honor. I respect him. But good men make mistakes. In this instance, he has committed a serious error with potentially severe implications. It is incumbent upon him — or the leadership of the department — to dispel the uncertainty he has created before Election Day. It is up to the director to correct his mistake — not for the sake of a political candidate or campaign but in order to protect our system of justice and best serve the American people.

In the final analysis, James Comey should offer his resignation for politicizing the FBI by violating long-standing department protocol and policies and for inserting himself into this election, possibly in violation of the Hatch Act. He has undermined public confidence in his judgment and the integrity of the FBI by politicizing the bureau.