FBI Director James Comey’s disdain for partisan politics is well known among his Justice Department colleagues. A respected former prosecutor who has held high-profile jobs in both Democratic and Republican administrations, this clean-cut father of five sees himself as a straight shooter who, in his own words, doesn’t “give a hoot” about politics.
But the past four months have completely exploded that notion. Since July, by repeatedly caving to political pressures as he sought to resolve an investigation that has now been grievously compromised by his own public statements, the director has led the bureau into its most politically perilous chapter in generations—with the presidential campaign hanging in the balance. It’s a crisis that’s unprecedented in FBI history—and the endgame, with just over a week until Election Day, is anything but clear.
The latest in the FBI director’s series of political bungles came over the course of the day on October 28—the second-to-last Friday before Election Day—when Comey approved, signed and sent two letters that will go down as infamous in the history of presidential politics and the annals of law enforcement.
In the first, addressed to the Republican chairmen of eight congressional committees, Comey dropped a bombshell that shook the presidential race. In defiance of longstanding tradition, Justice Department policy and an explicit warning from the department’s senior leadership, the director informed Congress that the FBI would be taking “appropriate investigative steps” to review “emails that appear to be pertinent” to its probe into Hillary Clinton’s email practices—a probe that Comey himself had very publicly laid to rest more than three months earlier.
With the second letter, addressed “To all” and distributed to FBI employees, the director made a feeble attempt at damage control. Acknowledging that the FBI doesn’t “ordinarily tell Congress about ongoing investigations,” that it did not yet “know the significance of this newly discovered collection of emails” and that his first letter carried “a significant risk of being misunderstood,” Comey defended his decision to subordinate the Justice Department’s clear-cut rules to his own personal judgment. “I … think it would be misleading to the American people were we not to supplement the record,” he wrote, apparently oblivious to the fact that his ill-conceived “supplement” was already spawning dozens of misleading headlines, even plunging financial markets (briefly) into turmoil.
Together, these letters give the lie to Comey’s repeated insistence that the FBI is above politics, exposing that notion as both irrelevant—because, whatever his motivations, Comey’s actions have placed the FBI at center stage during the presidential campaign’s climactic moment—and absurd, because the director has, in fact, repeatedly bowed to political pressures arising from the Clinton investigation.
In early July, when the investigation reached its (initial) conclusion, Comey called an extraordinary news conference to opine, before the national media, on the Democratic nominee’s “extremely careless” conduct—even as he insisted that “no reasonable prosecutor” would file charges against her. The fact that no prosecutor had been consulted was, for Comey, a point of pride—evidence, he thought, of his independence, rather than his brazen disregard for Justice Department rules (which dictated that a senior DOJ official, not the FBI director, should have had the final say).
Especially in retrospect, it is difficult to interpret Comey’s rambling statement—which veered at times into speculation and would have been assailed as prejudicial, had the FBI proposed charges against Clinton—as anything other than a preemptive defense against Republican allegations of partisanship. It was, in its own way, a purely political exercise—and an unfortunate mistake that Comey would compound, just two days later, by acquiescing to demands that he account for his conclusions in an open congressional hearing.
This unusual step, in turn, not only made the FBI complicit in a political assault on a presidential candidate; it invited members of Congress to pick through reams of investigative materials that the bureau normally holds in strict confidence. Even worse, Comey’s decision to release these materials to the public at the same time deprived Clinton of the chance to defend her actions and challenge the government’s findings in a court of law. By making the materials publicly available, Comey empowered political actors to second-guess investigators while arming Republicans with the evidence they needed to take their case to the court of public opinion.
At every stage, Comey’s defenders have argued that the very existence of the Clinton investigation has put the FBI director in an impossible position. Had he handled it like any ordinary matter, they say—ignoring political pressures, releasing a terse statement that the investigation would be closed without charges, or perhaps declining to say anything at all—the FBI would surely have faced intense criticism. Such an outcome might have eroded the public’s faith in the competence and impartiality of federal law enforcement—a worrisome prospect, to be sure.
The trouble with this line of reasoning—that the rules do not apply in cases like Clinton’s, and that the need for “extraordinary transparency,” as defined by the FBI director, outweighs the rights of a person under investigation—is that every successive disclosure sets an unfortunate precedent (or at least a public expectation), and every new exemption leads to another. If Comey was willing to explicate his thinking at a televised news conference, why not do so—in even greater detail—before a congressional committee? If the director was happy to discuss evidence that the Justice Department had declined to present in court, why not release that evidence to the general public? And if Congress is entitled to join in the FBI’s investigative deliberations—evaluating its evidence and critiquing its every move—why not provide updates in real time?
On Friday, with his vaguely worded letter to Congress—a letter that again broke with precedent, that was ripe for misinterpretation and that he had been advised by his superiors not to send—Comey took this logic to its regrettable conclusion. The result, as we have seen, has been less clarity, not more; rising, rather than falling, confusion and controversy; and an enormously heightened, rather than minimized, impact on the presidential election. This is something that past FBI directors have taken great pains to avoid—and for good reason: Even the appearance of influencing an election, with or without an overtly partisan agenda, would spell disaster for the FBI’s credibility.
Had Comey—the straight shooter—simply allowed his actions to be guided by rules that had been exquisitely crafted, over decades, to prevent this from occurring, he would have faced criticism for quietly closing the Clinton case and refusing to improperly air its findings. And it would have been his job, as a law enforcement professional, to absorb this criticism.
By instead carving exceptions to those rules whenever it suited his judgment, he has done far greater (and potentially lasting) damage to the FBI’s reputation—leading his agency to the very outcome he once hoped, at all costs, to avoid.
However pure Comey’s motives, his actions have been irresponsible—“careless,” he might say—in the extreme. It is startling to consider that, in an election roiled by what looks to be unsettling Russian interference, violent rhetoric and a chilling pledge by one candidate to jail his political opponent, one of the most palpable shocks to the 2016 campaign—at least to this point—might well have been touched off by the FBI director. The situation must be personally agonizing for Comey, whose distaste for partisan politics is well known among current and former Justice Department officials (many of whom greeted last week’s letters with cold fury). But the director has no one but himself to blame.
In the coming days, if past is prologue, Comey will devise a way to respond to this spiraling political furor, further bending the rules toward “extraordinary transparency” in hopes of clarifying at least some of the ambiguities introduced in his letters. Unfortunately, though, the damage has likely been done. The headline itself has become the indictment; the underlying facts matter hardly at all. With just over a week until Election Day—and early voting underway in more than two dozen states—there is precious little time to set the record straight.
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