Four days after James Comey, the FBI director, sent Congress a brief, inscrutable, election-shaking letter about emails that may or may not be new or relevant to the previously concluded investigation into Hillary Clinton’s private email server, his logic makes even less sense than it did Friday.
He said then that he was obligated to update Congress because he had testified in July that the investigation was complete. It now turns out that he knew nothing about the substance of the emails, which were found during a separate investigation of a computer belonging to Anthony Weiner, the estranged husband of Huma Abedin, one of Clinton’s closest aides. And he clearly failed to consider the impact of the innuendo he unleashed just days before the election, seemingly more concerned with protecting himself from recrimination by critics in Congress and the FBI. In fact, the investigators had not even obtained a warrant to examine the emails when he fired off the letter; they got the warrant over the weekend.
Now, thanks to Comey’s breathtakingly rash and irresponsible decision, the Justice Department and FBI are scrambling to process hundreds of thousands of emails to determine whether there is anything relevant in them before Nov. 8 – all as the country stands by in suspense. This is not how federal investigations are conducted. In claiming to stand outside politics, Comey has instead created the hottest political football of the 2016 election.
The Clinton campaign and its supporters are apoplectic. But top federal law enforcement officials from both Democratic and Republican administrations have been just as swift and fierce in their condemnation of Comey. The Justice Department, of which the FBI is a part, has a long-standing rule against disclosing inflammatory information to the public and even to Congress about an investigation within 60 days of an election, because that might be seen as influencing the vote.
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Eric Holder Jr., the former attorney general, wrote in The Washington Post that Comey had “committed a serious error with potentially severe implications” and that he had “negatively affected public trust” in the Justice Department and the FBI. Alberto Gonzales, who was attorney general under President George W. Bush, said, “To throw out this kind of letter without more information, without really knowing what the facts are with respect to these additional emails, I think was a mistake.”
Richard Painter, Bush’s top ethics lawyer from 2005 to 2007, went further, saying Comey’s letter had “very likely” violated a federal law barring public officials from using their position to influence the outcome of an election. In an Op-Ed essay in The Times, Painter said he had filed a complaint with the Office of Special Counsel to investigate Comey’s action.
Harry Reid, the Senate minority leader, echoed that charge in a letter to Comey and also criticized what he labeled a double standard. He has called on the FBI to release information about any investigation into Donald Trump’s ties with the Russian government, too. But that would only compound the damage Comey has done, violate the Justice Department’s rule and further politicize the FBI.
Comey appears to have grasped the importance of that rule in some contexts. On Monday, CNBC reported that in early October, Comey fought successfully to keep the FBI’s name off a government report regarding evidence that Russia was attempting to interfere in the presidential election. He believed the report was accurate but did not want to sign on to it so close to the election.
Amid all the noise, it’s worth remembering that even if emails with classified information are found on Weiner’s computer, that may not change Comey’s decision, announced in July, to recommend against filing charges against Clinton, since the FBI has already determined that she did not intentionally mishandle classified information.
In an election that has featured the obliteration of one long-accepted political or social norm after another, it is sadly fitting that one of the final and perhaps most consequential acts was to undermine the American people’s trust in the nation’s top law enforcement agencies.