When investigators go rogue: James Comey and Hillary's emails

FBI director James B. Comey has just delivered a November surprise. In an apparent effort to undo political damage inflicted by an earlier declaration, Comey informed Congress on Sunday that no new evidence has been uncovered to warrant charges against Hillary Clinton for mishandling classified information.

In Sunday’s letter to Congress, Comey said that the Bureau was standing by its earlier decision last July not to recommend charges against Clinton or her top aides in the investigation of her unprecedented use of a private email server while in government.

In this new letter, Director Comey is clearly attempting to retract the impression he created 10 days ago that Mrs.  Clinton may have violated the law. In his earlier, vague letter to Congress, Comey suggested that he was renewing an inquiry into Hillary Clinton’s emails after 650,000 emails were found on the laptop of the estranged husband of one of her closest aides, Huma Abedin.

While Mrs. Clinton’s campaign spokesman quickly praised Comey’s latest letter on Sunday --  a clarification issued just 36 hours before polls open on Election Day across the nation – Comey’s action has reinforced the perception that the FBI, indeed, the Justice Department, are two government agencies in chaos. Both letters also suggest that Comey has yielded to intense criticism of his earlier conduct, which many critics excoriated as a dangerous departure from Justice Department tradition and procedure.

As a journalist who spent three months in jail protecting confidential sources after becoming enmeshed in a criminal prosecution which never should have been pursued, I am particularly concerned about the growing power of law enforcement and what some have called judicial “overreach.”

Prominent Republican and Democrat jurists savaged his letter to Congress in late October suggesting that he was renewing his inquiry into Hillary Clinton’s emails, viewing his action, charitably, as a profound mistake, and at worst, as gross interference in politics which could alter the outcome of Tuesday’s presidential race.

Comey, however, was not the only culprit in "Lettergate." His partner in judicial, or public relations crime, was Attorney General Loretta E. Lynch, who could have ordered Comey not to send that letter, but chose not to do so.

Despite their last-minute effort to undo the suspicion and political damage to Mrs. Clinton, their conduct can be seen as political cowardice, or over-zealousness on the part of law enforcement that should worry Americans concerned about judicial overreach and due process.

As a journalist who spent three months in jail protecting confidential sources after becoming enmeshed in a criminal prosecution which never should have been pursued, I am particularly concerned about the growing power of law enforcement and what some have called judicial “overreach.”

Examples abound. Consider, for example, the reprehensible indictment 100 days before the 2008 election of former Alaska Senator Ted Stevens, the longest-serving Senate Republican in history, who was later exonerated, or the 2006 Duke lacrosse case, in which three team players were falsely accused of raping a stripper, although two of them had solid alibis and the prosecutor failed to pursue glaring contradictions in the alleged victim’s story.

In my own case, Special Counsel Patrick Fitzgerald, Mr. Comey’s close friend, pursued a case against Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff involving a leak of classified information despite knowing that the source of the leak was not Mr. Libby, but an aide to Secretary of State Colin Powell who was never punished for releasing classified information -- the name of a CIA agent.

Comey, of course, recommended last July that no one be indicted in the Clinton email investigation. But what he has done -- three times in four months -- still shocks.

For the FBI director is supposed to be the nation’s chief investigator, not our chief prosecutor, and certainly not a grand inquisitor opining on the nature of the conduct, or motive, or lack of such on the part of an individual he has just legally exonerated.

As former Attorney General Michael Mukasey, a conservative, recently wrote, “Comey’s authority extends only to supervising the gathering of facts to be presented to Justice Department lawyers” and not to any decision of “whether or not charges should be brought.”

Normally, such a momentous decision would have been made by Attorney General Lynch. But as we know now, Ms. Lynch was compromised by Bill Clinton’s  tête-à-tête with her on an airport tarmac shortly before Comey’s referral.

Then there was Hillary Clinton’s own hint that if elected, she might ask Ms. Lynch to stay on as Attorney General.

Yet Lynch still did not recuse herself in this case -- as she should have.

Let’s review the facts. Last July, director Comey asserted at a press conference that “no reasonable prosecutor” would bring charges against Mrs. Clinton for having a personal server (a “mistake,” as she called it for which she has apologized) which contained 110 classified emails among a total of 30,000 emails.

His assertion was soon challenged by several former prosecutors who said they might, in fact, have come to a different conclusion. But having usurped a prosecutor’s role by concluding that Ms. Clinton should not be indicted because he had found no evidence that she and her key aides intended to violate laws governing the handling of classified information (a decision the attorney general should have made) Comey went on to indict her in the perception of many Americans by saying that her handling of classified information was “exceedingly careless.” (I’m not a lawyer and can only speculate about how that differed from the “gross negligence” standard in the classified information law.)

The campaigns moved on, but not, apparently, some FBI agents and Justice Department officials said to be furious about Comey’s findings and/or his presentation. Subsequent press reports this fall asserted that Justice Department officials effectively shut down two other election-related investigations -- an inquiry into the Clinton Foundation and another into relations between powerful Russians and Donald Trump’s campaign. (U.S. intelligence agencies have accused Russia of hacking into Democratic officials’ emails).

News accounts reported that the Justice Department wanted the inquiries closed due to the lack of convincing evidence -- despite months of investigation -- and because the inquiries might influence the outcome of the election. Which brings us to director Comey’s astonishing letter to Capitol Hill sent against Ms. Lynch’s alleged advice.

I do not believe that director Comey acted because he secretly supports one candidate over another, or that he intended to influence the outcome of the election.

His defenders argue that he had to send notice to Congress to avoid being accused of covering up the discovery on Anthony Wiener’s lap top of some 650,000 emails that may, or may not be duplicates of Clinton emails the FBI has already examined. A leak about his having covered up such a discovery might have had an even greater impact on the election than his letter, Comey’s friends say. But his letter compounded political damage to Hillary Clinton by failing to explain what that discovery meant. And if he could not offer such a description, he should have adhered to Justice Department tradition -- which precludes action within 60 days of an election that is likely to impact a race’s outcome – and said nothing.

For her part, Attorney General Lynch has mostly avoided public scrutiny in this affair, but she, too, is culpable. As Jack Goldsmith and Ben Wittes argue in their well-informed blog “Lawfare,” Lynch could have ordered Comey not to send the October letter, but dodged accountability by merely advising him not to do so.

“The Attorney General was fence-riding,” Goldsmith and Wittes write. “She didn’t want Comey to send the letter, but she also didn’t want the responsibility for ordering him not to send it.”

Whether or not the election is affected by Comey’s succession of assertions, counter-assertions, clarifications and flip flops, damage has been done.

As Eric Holder, President Obama’s former attorney general charged in a stunning rebuke to Mr. Comey (and in my view, to his successor), Comey’s conduct “unintentionally and negatively affected public trust in both the Justice Department and the FBI.”

Can one blame Americans for concluding, as Donald Trump has self-servingly claimed, that the system is “rigged”?