A Disastrous Double-Standard

As the remarkable story of President Trump’s secret ties to Russia unfolds each day, it is hard not to think back to the day last summer where a press conference about a different investigation, with a different potential target, and an undoubtedly different outcome became the center of the political universe. On July 5, 2016, FBI director James Comey took to his high podium to deliver a statement about his organization’s criminal investigation into potential mishandling of classified information by former Secretary of State and then-presumptive Democratic nominee for president Hillary Clinton. As Comey himself admitted, it was “an unusual statement.” He both gave “more detail about our process than [he] ordinarily would” while “not coordinat[ing] or review[ing] [his] statement in any way with the Department of Justice.” Intense public interest and importance, he said, justified his departure from protocol.

Comey’s statement was unusual for another reason. Despite finding no deceit or destruction of evidence, finding no intent to disclose classified information, and ultimately concluding that Clinton sent or received a mere 110 e-mails in 52 e-mail chains (plus six others found by examining e-mail fragments) containing classified information over a private server, he felt the need to publicly chastise his investigation target. Although determining that no reasonable prosecutor would bring charges based on such meager evidence of intentional mishandling of classified information, Comey took time to make the damaging and debatable charge that Clinton had been “extremely careless” and speculatively ruminated that it was “possible” a hostile foreign actor had accessed Clinton’s communications.

Now we know that just weeks after Comey made these public statements about a confidential investigation, his FBI was actively investigating the far more explosive possibility that Clinton’s Republican opponent in the presidential race was intentionally conspiring with a hostile foreign power to influence the election in his favor.

Much has been made of Comey’s puzzling decision to inform Congress just days before the November election that the FBI had discovered additional Clinton emails from an unrelated investigation, which it had not reviewed and had no reason to believe were relevant to its previously concluded inquiry. While it’s true that his surprising October letter to Congress seemed almost designed to affect the election outcome and was based on a far more speculative and reckless rush to publicize inconclusive information, it was his initial decision in July to publicly comment on the investigation that opened Pandora’s box. It is somewhat understandable that Comey felt compelled to keep the public apprised on the Clinton investigation once he had already broken the seal. As many pointed out at the time, however, the July press conference was unprecedented and wholly inappropriate for a host of reasons.

First, given that Comey decided against indicting Clinton, it was inappropriate to make a public announcement of any kind. Pre-indictment investigations are confidential and are only publicized when criminal charges are actually brought (as convictions can only be secured through evidence presented in open court). Second, even assuming a need for Comey to publicly announce his decision, it was inappropriate to present evidence and comment on facts that did not bear on the decision to prosecute. If Clinton’s conduct was non-criminal, it was certainly not for the FBI Director to announce four months before an election that in his opinion she had been “extremely careless.” Third, Comey’s grand pronouncement usurped the Department of Justice’s exclusive role in deciding whether or not to indict. Prosecutors, not police, bring charges. Comey’s choice not to consult with Attorney General Loretta Lynch prior to making his announcement implicitly credited the right-wing portrayal of the Obama Justice Department as biased and compromised.

Why Comey handled the Clinton investigation this way is unclear. There are several plausible rationales and legitimate doubt about which ones were at play. But regardless of the motive, Director Comey’s decision to broadcast the details of an investigation which resulted in a non-indictment was deeply irresponsible. And the recklessness of elevating the preposterously overblown email controversy was made far, far worse by deciding to bury a criminal investigation of high-ranking members of an ongoing presidential campaign for possible treason (the recent report that Comey wanted to publicly discuss the investigation this past summer is immaterial; he apparently only wanted to reveal via a newspaper op-ed that the Russians were trying to harm Clinton, not that his investigation included assessing whether the Trump campaign itself was connected to those efforts).

Why rehash this history? Because Comey’s testimony before the House Intelligence Committee last week revealed that his disastrously unprofessional handling of the Clinton investigation was much worse than previously understood. On March 20, Comey testified that the FBI was “investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts” to harm Clinton’s presidential campaign. In his opening remarks, he appeared to try to preempt potential criticism of his differential handling of the Clinton and Trump investigations, stating thatsome folks may want to make comparisons to past instances where the Department of Justice and the FBI have spoken about the details of some investigations, but please keep in mind that those involved the details of completed investigations. Our ability to share details with the Congress and the American people is limited when those investigations are still open[.]”

That explanation is simply insufficient. While there may be a reasonable difference between open and closed investigations, there is no reason why he had to so recklessly break from prosecutorial precedent in dealing with Clinton’s closed case. More importantly, there is no reason why the Director could not have made statements last fall similar to those he made last week about a Russian investigation that continues to be open. Though there was a need to guard the sources, leads, and details of the investigation, the American people had a right to know that there was evidence suggesting that one of the two major party campaigns for president was potentially colluding with Russia to rig an election in its favor. Whether purposely or incidentally to achieving a separate objective, Comey used his power as FBI Director to tilt the presidential playing field so he could disclose the reasons for a non-prosecution decision about an investigation into possible inadvertent disclosure of small amounts of classified information. Then he chose not to do so about high-stakes treason that threatened the very foundation of the Republic. Let Comey complete the Russia inquiry. Once that investigation is done, the Comey investigation can begin.

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