James Comey’s Unwitting Attack on American Democracy

Following FBI Director Jim Comey’s decision to send a letter on the FBI’s investigation of Hillary Clinton’s private email server to Congress on Friday, a wild weekend of bewilderment and speculation ensued. Comey’s letter suggested that the FBI had potentially found new evidence in the case but stopped short of offering any details about the emails or whether he might come to new conclusions that would contradict his July recommendation to the Attorney General not to seek any indictments in the investigation. The letter was vague to the point of obfuscation, it was followed by the leak of the only slightly more revealing email Comey sent to all FBI employees to explain the Congressional letter, and the reporting immediately following the release of the letter often contradicted itself. Things were made significantly worse when it came to light that the source of the potential new evidence was a laptop seized by the FBI in an investigation into Anthony Weiner, who is of course married to top Clinton aide Huma Abedin. (Can you make this stuff up?)

Over the weekend I read, relied on, and posted to social media a fairly circumspect take on Comey’s actions based on Lawfare’s excellent analysis of the FBI Director’s conduct since July. The upshot of that anaylsis and my thinking at the time was that Comey had engaged in poor decision making in sending this letter to Congress but had started down the slippery slope that led to this latest disclosure with previous choices he made to engage publicly in this case. Comey clearly felt some of those choices were dictated by the compromised nature of his superiors in government, President Obama and Attorney General Lynch, with regard to this case. But as the Lawfare analysis points out, because Americans value privacy and civil liberties, the Fourth Amendment effectively proscribes the type of radical transparency in law enforcement investigations that Comey has employed here. With that in mind, I’ve become convinced, that Comey’s behavior is indefensible.

Comey is treating this investigation differently than any other in spite of all the guideposts on his path telling him the dangers of doing so. His actions violate clear guidance from his superiors (2012 memo from them-AG Eric Holder and 2016 Hatch Act guidance from current Deputy-AG Sally Yates), disregard specific advice from his current boss (AG Loretta Lynch advised him not to send the letter last week), and possibly represent different treatment for an investigation into the other major party candidate’s conduct and that of his advisors (Harry Reid’s October 30 letter to Comey suggests that there are ongoing but undisclosed investigations of Donald Trump and/or members of his campaign that would implicate the far more serious charge of foreign influence in our election and eventually in a Trump Administration). The Hatch Act is a federal statute that prohibits this type of action by government employees and Comey may very well have run afoul of that law meaning his job could even be forfeit.

As Paul Krugman pointed out in his column yesterday, Republicans have been complaining about liberal bias in American institutions for so long, so loudly, and so dishonestly that everyone who speaks about a contentious issue in public treats Republicans with kid gloves. Comey may have fallen into that trap. He offered radical transparency where none was appropriate to satisfy slathering hordes calling for persecution rather than investigation of Hillary Clinton. Now that he’s given them what they asked, he will be the latest to discover it won’t slake their inexhaustible political bloodlust.

In the end, Jim Comey’s good intentions have cost him his public reputation for integrity and may cost him his job. The true victim, however, is a tradition and legal structure that protects American people from law enforcement witch hunts. That is one more safeguard for our democracy that has been sorely tested and badly damaged by the continual efforts of the Republican Party to tear down our political institutions for partisan gain.