It has required almost constant reading just to keep up with all the former FBI and DOJ officers who are castigating James Comey for his bad judgment in talking about emails that, at the time, he had not even seen and that reportedly were neither from or sent to Hillary Clinton. At least two former Attorneys General, one Democrat and one Republican, and numerous FBI investigators and DOJ prosecutors, have weighed in with sharp criticism.
Terry Smith, a research professor and legal analyst, has described Comey's action in a way we can all understand -- as if it had happened to us. Suppose you were applying for a job (as Clinton is doing) that required a background check. Although you have never been charged or convicted of a crime, the FBI Director includes in the background-check report the fact that your name turned up in a cache of emails from a completely unrelated case they are investigating. Your only connection with that case is that the emails were on the laptop of the man being investigated; and his wife works with you.
Further, you have no way of refuting any involvement, because the FBI has supplied no evidence; they haven't even examined the emails themselves yet. References to you could simply be copies of emails the wife wrote you about totally unrelated matters of a personal nature. But this vague association taints you enough, in the mind of the person hiring, that he gives the job to someone else. That's essentially what Comey has done to Clinton.
Smith sums this up: "Do you believe you have been treated fairly? Of course not. Do you feel that the FBI has acted properly in spreading innuendo about you that you cannot possibly rebut because you have no idea what evidence, if any, it is basing its innuendo on? No."
Comey's action, Smith says, "debases any notion of due process as well as the Constitution itself. . . . Most harmful of all, Comey leaves voters to make a negative inference from evidence that they’re not likely to be made privy to prior to casting their votes. . . . only speculation that there might or might not be some evidence at some point in the future." Then this legal analyst writes:
"In the coming days, there will be plenty of innuendo against Director Comey, such as the reputational threat that Republicans must have hung over his head to make him take the unprecedented step of trying to influence the outcome of our country’s free elections. Will this innuendo be fair? Perhaps no more so than Comey’s innuendo against Clinton. But Comey built this glass house, so it’s fair that he see his reflection."
On another front, Richard Painter, the former chief White House Ethics Lawyer in the Bush Administration (2005-2007), actually filed a formal complaint against Comey with the independent Office of Special Counsel in the Department of Justice. His charge is abuse of power under the Hatch Act, which forbids, under any circumstances, the use of a government official's position to influence an election. He notes in a New York Times op-ed: "Such violations are of even greater concern when the agency is the FBI."
Speaking for President Obama, Press Secretary Josh Earnest, declined to defend or to directly criticize Comey's action; but he called it "potentially damaging to our democracy" and made it clear that the decision was made by Comey alone. Earnest added that the president regards Comey as a man of integrity and does not think he was trying to influence the election. But he also stressed how important it is to temper great authority with "adherence to longstanding tradition" that limits public discussion of what is collected in investigations. Ryan Grim, Huffington Post's Washington Bureau Chief, called this a White House "arm's-length rebuke" of Comey, essentially telling him to repair the damage, noting that in breaking the tradition, "the predictable results have occurred."
And then, late Monday, Eamon Javers of CNBC reported from a source who is a former FBI official that in early October Comey argued privately that it was "too close to Election Day for the United States government to name Russia as meddling in the U.S. election." Comey argued for, and ultimately was successful, in keeping the FBI's name off that announcement, which was made by the Department of Homeland Security and the Director of National Intelligence.
This source said government insiders "are perplexed" as to why Comey would be concerned that an announcement might hurt Trump, but not when it would hurt Hillary Clinton. According to this official, Comey agreed that a foreign power was trying to undermine our election, but he was opposed to announcing it before the election. As a result he did not allow the FBI name to be included in the announcement.
From what we know about Comey's meticulousness about the law, it's hard to believe he would actually have such a different approach for partisan reasons. But, at this point, it's hard to come up with another answer. If it was too close to the election in early October, why is it not too close in late October?
It's time for some answers, Director Comey.
PS: Just heard a discussion about this on MSNBC later on Monday night. It seems there are strong and divisive feelings in the FBI about how the Clinton investigations have been handled. Some want to be much more aggressive and were dismayed when Comey did not bring charges. This leads some to think that Comey was afraid that, if he did not advise Congress about the new emails, some of these FBI officers might leak it -- and then Comey would look like he was covering it up. Others have thought the pressure came from the Republicans on the House Oversight Committee, before whom he testified and assured that the investigation was full and complete.
It's very troubling to hear of such dissension within the FBI, with people turning against each other, and using information leaks as a tactic in internal war. It' also troubling to think that Comey can be swayed in his decisions by threats to his own reputation, over the good of the country. Is this also a problem of Comey's ability to manage the agency? On the other hand, some have said this explanation is overblown; that you always have some eager investigators out there in the field who chafe at the restraints that their superiors impose from their larger-picture perspective.