The Director of the F.B.I. Adds His Two Cents

I wasn’t surprised when James Comey, head of the F.B.I., announced that Hillary Clinton would not face criminal charges as a result of her email practices. But I was relieved. There was always the possibility that Comey, a Republican, might complicate the election by calling for an indictment. So it was good news when Comey said:

….no reasonable prosecutor would bring such a case…. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.

That could have been the end of the matter. The F.B.I.’s job was to determine the facts and make a recommendation to the Attorney General. In this case, the recommendation was: “No prosecution is called for”.

But Comey had much more to say that morning (actually he had 2,300 words to say in his prepared statement). In an attempt at explanation, he included this preamble:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

As you’ve probably heard, Comey then went into some detail about what the F.B.I. found. He also strongly criticized Clinton for being careless with national security (although no actual breach of national security was detected) and offered critiques of some of Clinton’s statements.

Immediately, what seemed like a good day for Clinton seemed like a very bad day. Reporters and pundits repeated Comey’s language about carelessness and drew conclusions about the negative effects the F.B.I. director’s remarks would have. One reporter for the New York Times went so far as to write a theoretical attack ad for Trump’s campaign. It was presented on the front page of the Times as “news analysis”.

Since then, of course, the Republicans have strongly criticized Comey’s recommendation that Clinton not be prosecuted. And other facts have come out. For example, it turns out that some of the information that was labeled “classified” shouldn’t have been, according to the State Department, and that the labeling wasn’t done according to the rules in a clearly visible way.

Compared to the other issues we’re confronting, and considering who Clinton is running against, it’s possible that the email issue will fade away as the election approaches and our ballots are finally cast. (I’ve always thought this story was mainly interesting because it demonstrates how too much information is “classified” by overzealous government employees.) Nevertheless, after the initial blast of “analysis”, I saw an article and a letter to the editor that characterized Comey’s two-thousand-word statement in an interesting way.

The article in The Washington Post was written by a former director of the Justice Department’s public affairs office. It’s called “James Comey’s Abuse of Power” and is worth quoting at length:

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.

…his 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.

Justice Department rules set clear guidelines for when it is appropriate for the government to comment about individuals involved in an ongoing investigation, which this matter was until prosecutors closed it Wednesday. Prosecutors and investigators can reassure the public that a matter is being taken seriously, and in some rare cases can provide additional information to protect public safety, such as when a suspect is loose and poses a danger.

And 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….

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.

Finally, a professor of legal ethics at the New York University school of law wrote this letter to The Times:

James B. Comey, the F.B.I. director, was out of line in holding a press briefing to deliver his verdict on Hillary Clinton’s use of a private server. The F.B.I. investigates crime and reports its findings and recommendations to federal prosecutors, who then decide whether to seek indictments.

The F.B.I. is neither judge nor jury. And it certainly has no business characterizing the noncriminal conduct of subjects of investigation, as Mr. Comey did. Cops, even top cops, should not play this role.

While it may gratify the country to hear Mr. Comey’s independent views on the server controversy, his press briefing sets a bad precedent that can harm the fair administration of justice. Few people under investigation have the resources Mrs. Clinton has to defend herself….

Once a decision is made not to indict, a prosecuting agency should say nothing more. Its job is to prosecute crime, and if there is no crime, it should remain silent.

My conclusion is that Comey’s statement was unusual in a way he didn’t think to mention, i.e., it was wrong for him to make it.