James Comey Acted on His Own in Clinton Email Disclosure, Violated Justice Department Policy

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Comey seems to have believed he had no choice in the matter.Photo: Win McNamee/Getty Images

According to The New Yorker’s Jane Mayer and the Washington Post, FBI director James Comey acted on his own when he, 11 days before the election, disclosed on Friday that new emails had been discovered which may or may not be relevant to the agency’s closed investigation of Hillary Clinton’s use of a private email server as secretary of State. Comey, by informing Congress of the evidence, apparently disregarded the opinions of Attorney General Loretta Lynch and Justice Department officials, who had reminded him of the department’s policy of neither commenting on ongoing investigations nor acting in such a way that could influence an upcoming election.

Comey apparently understood he was violating these guidelines, but felt he was obligated to do so because he had promised members of Congress he would inform them of any further developments related to Clinton’s email-server misuse, particularly because of the proximity of the impending election. In a letter he sent to FBI employees after alerting Congress of the new evidence, Comey acknowledged that it was unprecedented for him to inform Congress of an incomplete investigation, but explained that:

I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.

The Washington Post also reports that Comey’s other motivation for going public was that he was worried that the discovery of the emails would be leaked to the media after he briefed a team of investigators about them, and if so, the FBI could be accused of some kind of cover-up.

All of this happened despite that fact that it remains quite unclear if the new emails are even relevant to the Clinton investigation, since they had not been reviewed before Comey made his announcement.

In the meantime, the Clinton campaign, Democratic leaders, and some former Justice Department officials are upset over Comey’s disclosure. During a Friday night press conference, Hillary Clinton echoed earlier statements by her campaign manager John Podesta and demanded that the FBI immediately explain its review of the new emails, because Americans “deserve to get the full and complete facts immediately,” and because “even director Comey noted that this new information may not be significant, so let’s get it out.”

Politico talked to a few of Comey’s former Justice Department colleagues, some of whom concluded that he brought the whole situation upon himself back in July when he decided to break precedent and explain why the FBI wouldn’t be bringing charges against Clinton after its email-server investigation. Either way, most of those Politico talked to were stunned by Comey’s move:

“I got a lot of respect for Jim Comey, but I don’t understand this idea of dropping this bombshell which could be a big dud,” said former federal prosecutor Peter Zeidenberg, a veteran of politically sensitive investigations. “Doing it in the last week or 10 days of a presidential election without more information, I don’t think that he should because how does it inform a voter? It just invites speculation … I would question the timing of it. It’s not going to get done in a week.”

“It is not the function of the FBI director to be making public pronouncements about an investigation, never mind about an investigation based on evidence that he acknowledges may not be significant,” former assistant U.S. attorney Nick Akerman added. “The job of the FBI is simply to investigate and to provide the results of its investigation to the prosecutorial arm of the U.S. Department of Justice. His job is not to give a running commentary about any investigation or his opinion about any investigation. This is particularly egregious since Secretary Clinton has no way to respond to what amounts to nebulous and speculative innuendo.”

But while former federal prosecutor Dan Richman defended Comey as just trying to stay above the political fray, former Justice Department spokesperson Emily Pierce told Politico that Comey may also have been trying to quiet internal critics at the agency who think he has buried the Clinton investigation for political reasons. Indeed, another official stressed to The New Yorker’s Mayer that Comey seems more focused on saving himself than any other concern:

“I don’t really blame Comey,” another former Justice Department official said. “But it’s troubling.” This official thought that Comey “didn’t want to look tainted. This new information comes to him, and he’s afraid if he doesn’t make it public until after the election he’ll be impeached. People will say he lied to Congress. But in the end he did the self-protective thing. Was it the right thing? Put it this way: it isn’t what previous Administrations have done.”

This post has been updated to incorporate additional commentary from former Justice Department officials.