Media outlets and journalists sharply criticized the Federal Bureau of Investigation (FBI) for interfering in the presidential election after Director James Comey violated precedent and policy by sending a letter to Congress saying the agency is reviewing newly discovered emails surrounding Democratic presidential nominee Hillary Clinton’s use of a private server as secretary of state. That announcement was followed by a series of additional leaks from the FBI.
FBI Agents Leak Allegations About Clinton And Trump Investigations After Director Breaks Rules And Precedent To Inform Congress About Update To Clinton Email Probe
FBI Director James Comey: FBI Reviewing Additional “Emails That Appear To Be Pertinent To The Investigation” Of Clinton’s Use Of Private Email Server And “Cannot Yet Assess Whether Or Not This Material May Be Significant.” In a three-paragraph October 28 letter to congressional leaders, FBI Director James Comey wrote, “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation,” saying the bureau is taking “appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.” He added that the “FBI “cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work.” [The New York Times, 10/28/16]
New Yorker: “Comey’s Decision Is A Striking Break With The Policies Of The Department Of Justice.” The New Yorker reported on October 29 that Comey’s release of the letter contradicted long-standing Department of Justice policies against taking actions that could influence election results, citing current and former federal legal officials. From The New Yorker (emphasis added):
On Friday, James Comey, the director of the Federal Bureau of Investigation, acting independently of Attorney General Loretta Lynch, sent a letter to Congress saying that the F.B.I. had discovered e-mails that were potentially relevant to the investigation of Hillary Clinton’s private server. Coming less than two weeks before the Presidential election, Comey’s decision to make public new evidence that may raise additional legal questions about Clinton was contrary to the views of the Attorney General, according to a well-informed Administration official. Lynch expressed her preference that Comey follow the department’s longstanding practice of not commenting on ongoing investigations, and not taking any action that could influence the outcome of an election, but he said that he felt compelled to do otherwise.
Comey’s decision is a striking break with the policies of the Department of Justice, according to current and former federal legal officials. Comey, who is a Republican appointee of President Obama, has a reputation for integrity and independence, but his latest action is stirring an extraordinary level of concern among legal authorities, who see it as potentially affecting the outcome of the Presidential and congressional elections.
“You don’t do this,” one former senior Justice Department official exclaimed. “It’s aberrational. It violates decades of practice.” The reason, according to the former official, who asked not to be identified because of ongoing cases involving the department, “is because it impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”
Traditionally, the Justice Department has advised prosecutors and law enforcement to avoid any appearance of meddling in the outcome of elections, even if it means holding off on pressing cases. One former senior official recalled that Janet Reno, the Attorney General under Bill Clinton, “completely shut down” the prosecution of a politically sensitive criminal target prior to an election. “She was adamant—anything that could influence the election had to go dark,” the former official said.
Four years ago, then Attorney General Eric Holder formalized this practice in a memo to all Justice Department employees. The memo warned that, when handling political cases, officials “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.” To guard against unfair conduct, Holder wrote, employees facing questions about “the timing of charges or overt investigative steps near the time of a primary or general election” should consult with the Public Integrity Section of the Criminal Division. [The New Yorker, 10/29/16]
Media Call Out FBI For Interfering In Presidential Election
Wash. Post Editorial Board: Timing Of Comey’s Letter Was “Unfortunate, Given Its Potential To Affect A Democratic Process In Which Millions Of People Are Already Voting.” The Washington Post’s editorial board wrote that the timing of Comey’s letter was “unfortunate, given its potential to affect a democratic process in which millions of people are already voting,” and said that it sets “a precedent that future partisans who are unhappy with the results of FBI investigations may exploit.” From the October 28 editorial:
Political tension is running high in the United States, extraordinarily so, we’d say. And so it behooves everyone in a position of official responsibility to do everything he or she possibly can to help maintain stability — while avoiding all avoidable provocations — until the bitter competition between Hillary Clinton and Donald Trump runs its ugly course on Nov. 8.
That is the context for Friday’s announcement by James B. Comey, director of the Federal Bureau of Investigation, that his agency is again looking into Ms. Clinton’s private email server in light of newly discovered emails “that appear to be pertinent to the investigation.” Mr. Comey may have had good reason to inform Republican committee chairmen in Congress of the review, but his timing was nevertheless unfortunate, given its potential to affect a democratic process in which millions of people are already voting.
Mr. Comey went too far, however, in providing raw FBI material to Congress, notwithstanding its important oversight role; that attempt to appease Republicans set a precedent that future partisans who are unhappy with the results of FBI investigations may exploit. [The Washington Post, 10/28/16]
NY Times Editorial Board: Comey’s Action Is Part Of “The Obliteration Of One Long-Accepted Political Or Social Norm After Another.” The New York Times’ editorial board decried the “logic” behind Comey’s decision to send Congress his “election-shaking” letter, saying that “he clearly failed to consider the impact of the innuendo he unleashed just days before the election.” The Times called the decision “breathtakingly rash and irresponsible.” From the October 31 editorial:
Four days after James Comey, the F.B.I. director, sent Congress a brief, inscrutable, election-shaking letter about emails that may or may not be new or relevant to the previously concluded investigation into Hillary Clinton’s private email server, his logic makes even less sense than it did on Friday.
He said then that he was obligated to update Congress because he had testified in July that the investigation was complete. It now turns out that he knew nothing about the substance of the emails, which were found during a separate investigation of a computer belonging to Anthony Weiner, the estranged husband of Huma Abedin, one of Mrs. Clinton’s closest aides. And he clearly failed to consider the impact of the innuendo he unleashed just days before the election, seemingly more concerned with protecting himself from recrimination by critics in Congress and the F.B.I. In fact, the investigators had not even obtained a warrant to examine the emails when he fired off the letter; they got the warrant over the weekend.
Now, thanks to Mr. Comey’s breathtakingly rash and irresponsible decision, the Justice Department and F.B.I. are scrambling to process hundreds of thousands of emails to determine whether there is anything relevant in them before Nov. 8 — all as the country stands by in suspense. This is not how federal investigations are conducted. In claiming to stand outside politics, Mr. Comey has instead created the hottest political football of the 2016 election.
Amid all the noise, it’s worth remembering that even if emails with classified information are found on Mr. Weiner’s computer, that may not change Mr. Comey’s decision, announced in July, to recommend against filing charges against Mrs. Clinton, since the F.B.I. has already determined that she did not intentionally mishandle classified information.
In an election that has featured the obliteration of one long-accepted political or social norm after another, it is sadly fitting that one of the final and perhaps most consequential acts was to undermine the American people’s trust in the nation’s top law enforcement agencies. [The New York Times, 10/31/16]
Atlantic’s Adam Serwer: “Don’t Let The FBI Decide The Election.” Atlantic senior editor Adam Serwer wrote that Comey’s letter and the leaks from the FBI “threaten American democracy as much as any of Trump’s authoritarian proposals”:
The Watergate Scandal is the story of political corruption at the highest levels of the American government, and of the journalistic crusade that brought it to light. But it’s also a story of bureaucratic revenge, of what happens when the most powerful political leaders in the country antagonize officials in its premiere domestic intelligence agency. The latter part of the story is typically elided in retellings, precisely because of its disturbing implication that Nixon’s corrupt presidency might have survived had he read the politics of the FBI better.
FBI Director James Comey’s decision to reveal fresh details of the Bureau’s investigation into Hillary Clinton’s private email server while secretary of state, and the subsequent leaks from Bureau sources casting suspicion on Clinton and defending Republican nominee Donald Trump from allegations of Russian influence, do more than threaten the Bureau’s reputation. They threaten American democracy as much as any of Trump’s authoritarian proposals.
The backlash against Nixon’s lawlessness helped lead to new and crucial restraints on the powers of the federal agencies charged with national security. But in recent years, technological advances, political shifts and the popular reaction to transnational Islamist terrorism have rendered many of those restraints obsolete. On Friday, Comey announced that the the Bureau was reviewing whether emails related to the investigation into Hillary Clinton’s email server might be preserved on the computer belonging to the former husband of a Clinton aide. That move, coming less than two weeks before the presidential election, suggests that some at the FBI once again feel untouchable.
There are several reasons why law enforcement agencies should not make sensitive political disclosures in close proximity to an election. The first is that investigations are not convictions, and such revelations necessarily create a presumption of guilt around the target of the disclosures. Another is that the FBI is given immense power to scrutinize the lives of American citizens, but that power is meant to help punish or prevent crimes, not to empower the Bureau to pursue its own political interests. Otherwise intelligence services would become a constituency elevated above the citizenry itself––with politicians currying their favor in order to ensure those agencies used their powers to their benefit and against their opponents. FBI agents are granted extraordinary authority to defend the Constitution, not to use investigations to manipulate American politics as they see fit.
Clinton may prevail, despite the Bureau’s disclosures, official and otherwise. But absent the kind of overwhelming popular backlash that followed the Watergate scandal, the sort of tough, comprehensive evaluation of the agencies charged with public safety that they so clearly require will not be forthcoming. The last spate of investigations and reforms came when the Vietnam War was winding down. As long as the War on Terror continues, by any name, the nationalism it inspires will find expression in authoritarian impulses that threaten the constitutional democracy agencies like the FBI are sworn to preserve. [The Atlantic, 11/2/16]
Bloomberg View’s Eli Lake: “The FBI Wants To Make America Great Again.” Bloomberg View columnist Eli Lake explained that Comey’s letter, the FBI leaks to the press, and a tweet from a rarely used FBI Twitter account that released details from an old investigation of Bill Clinton’s presidency point to “the FBI … trying to send a message about next week’s election.” As Lake explained, “through leaks and tweets,” FBI agents “appear to be helping Donald Trump,” adding that it’s “ironic that Trump is the one who keeps saying the election will be rigged.” From the November 3 column:
Maybe it’s just me, but I think the FBI is trying to send a message about next week’s election.
It’s not just that FBI Director James Comey informed Congress that there may be things on Anthony Weiner’s computer pertinent to his investigation of Hillary Clinton’s private e-mail server. Nor is it the extraordinary Wall Street Journal coverage this week that revealed frustrations in the bureau over alleged Justice Department pressure to slow-walk an investigation into the Clinton Foundation.
The cherry on this banana-republic split is a tweet published Monday from a long-dormant Twitter account called @FBIRecordsVault. It disclosed that new records of the bureau’s probe into Bill Clinton’s pardon of Marc Rich had been released because of a Freedom of Information Act request.
Comey’s letter to Congress has gotten a lot of attention. But his initial blunder was breaking with precedent and explaining to the public his decision not to recommend prosecution of Clinton for her use of the private e-mail server when she was secretary of state.
In this case, the rock for Comey is the perception that he is influencing the election by informing Congress about [Anthony] Weiner’s computer. The hard place is his pledge to Republicans in Congress to keep them informed of any developments about Clinton’s e-mails.
Comey appears to have done his best to stay out of the election, but he is in the middle of it now. Through leaks and tweets, people in his bureau appear to be helping Donald Trump -- a man who has called for Clinton to be jailed. Ironic that Trump is the one who keeps saying the election will be rigged. [Bloomberg View, 11/3/16]
NY Times’ Charles Blow: Election Is “In Danger Of Being Stolen From” Clinton By Comey “Weaponizing” The FBI’s Reputation “As A Partisan Political Entity.” New York Times columnist Charles Blow wrote that Comey was “weaponizing the reputation of the bureau once again as a partisan political entity” and “most likely just increased th[e] possibility” that Trump will win the election “through sleight of hand.” From the October 31 column (emphasis original):
Far from the faux election rigging that Donald Trump has been harping on for weeks, this election isn’t in danger of being stolen by Hillary Clinton, but in danger of being stolen from her.
On Friday, the F.B.I. director, James Comey, took the outrageous and unprecedented step of sending a letter to Congress announcing that the bureau has “learned of the existence of emails that appear to be pertinent” to the inquiry into Clinton’s personal email server that apparently had been uncovered as part of an Anthony Weiner sexting investigation.
Not only was this move reckless, weaponizing the reputation of the bureau once again as a partisan political entity, but also Comey was apparently ignoring the strong discouragement of the Justice Department.
How are voters supposed to fold this into their decision-making with a little more than a week left before Election Day? Is this a big deal about nothing or another phase in something substantial?
Republicans may be gleeful, but Democrats have every right to be livid. This is just the latest lifeline being thrown to a Republican candidate drowning in his own ineptitude.
There is no way to know what electoral impact this will have, but I would venture that it is safe to say that it will have some. Headlines and sound bites are as deep as some voters go. The impropriety of Comey’s action requires a level of detailed assessment that is simply beyond the inclination of what I roughly call the Fickle Five Percent, the late-deciding swing voters who move between candidates based on the week’s revelations.
Trump wants to win through sleight of hand and Comey most likely just increased that possibility, however slightly. Voters of all ideologies who value the integrity of our electoral process must send the strongest possible message that this is not how we want our democracy to operate. They must vote with conviction in absolute opposition. [The New York Times, 10/31/16]
Bloomberg View’s Francis Wilkinson: Comey Is “Single-Handedly Undermining Faith … In The Propriety Of A Presidential Election” To Appease Republicans. Francis Wilkinson, who writes editorials for Bloomberg View, chastised Comey for attempting to appease Republicans who are demanding legal action against Clinton for her use of a private email server, resulting in distrust in both the FBI and the election:
FBI Director James Comey is an institution man. So it must be especially painful to him that he is single-handedly undermining faith not only in the institution he leads, but in the propriety of a presidential election.
Comey has been balancing the interests of those institutions, the FBI and the election, for months. In July, when he held a news conference to announce the conclusion of the bureau's investigation into Hillary Clinton's e-mails, he opted to buttress the FBI's reputation for probity at the expense of a presidential candidate. His news conference was unusual -- investigations are normally concluded without public fanfare -- and Comey's stark criticism of Clinton's conduct was remarkably so.
The Republican appetite for vengeance seems to have launched Comey on his unprecedented path. His July news conference was intended to deflate rage, defang attacks and present the FBI's behavior as fully justified.
The tactic failed. Republicans, dead certain of Clinton's guilt -- of something -- accused Comey of treachery.
Comey is now mistrusted and despised on all sides. The institution he leads is similarly mistrusted. The FBI is in disrepute. The fairness of the election is broadly in doubt. Comey should have known that you cannot appease rage, or reason with a fever dream. [Bloomberg View, 10/29/16]
CNN’s David Gregory: It’s “Striking” That Comey “Is Allowing Himself To Be Interjected Into This Political Campaign.” CNN’s David Gregory said what Comey did is “unprecedented” and that it’s “striking” that he is “allowing himself to be interjected into this political campaign.” From the October 28 edition of CNN’s Wolf:
DAVID GREGORY: What I think is striking is, there's no question that there's political fallout from this, because it's still a political football. What is also striking is the extent to which the FBI director of the United States is allowing himself to be interjected into this political campaign. Unprecedented that he would have released the information he released after a decision not to recommend indictment. You just don't see that done ever, and now he is very publicly exchanging information with committees that are bent on keeping these investigations alive. [CNN, Wolf, 10/28/16]
CNN’s Jeffrey Toobin: Comey “Violated” DOJ’s “Bedrock Principle” That “You Don’t Release Information About Pending Investigations,” And Leaking Information About Trump Investigation Makes It Worse. CNN’s Jeffrey Toobin blasted the FBI for leaking information about investigations into both Clinton and Trump before the election. From the November 1 edition of CNN’s The Situation Room:
JEFFREY TOOBIN: A bedrock principle of the Department of Justice is you don't release information about pending investigations -- you put up or shut up, you file charges or you say nothing at all. The whole problem that the FBI got into is that Comey violated this principle, particularly close to an election. But the worst thing the FBI could do is compound that by disclosing partial information about Donald Trump. A big problem here, though, is that the FBI is leaking like a sieve. So James -- so it's in a way the worst of all possible worlds. There's this partial, perhaps inaccurate information coming out. But the FBI should do its job and shut up until they have the charges to bring. [CNN The Situation Room, 11/1/16]
NBC News Political Editor Mark Murray: “Truly Looks Like” FBI Is “Putting Their Finger On The Scale Of This Election” By Releasing Vague Letter To Congress.
Agreed. FBI should answer all questions about this.
Otherwise, truly looks like they're putting their finger on the scale of this election https://t.co/IN7OiBRG3h
— Mark Murray (@mmurraypolitics) October 28, 2016
Daily Beast Senior Editor Justin Miller: “Glad Comey Cleared This Up Before He Threw FBI Into A Goddamn Election.”
Glad Comey cleared this up before he threw FBI into a goddamn election https://t.co/Mn40MJ08NM
— Justin Miller (@justinjm1) October 29, 2016
LA Times National Reporter Matt Pearce: “Love To See The FBI Playing A Decisive Role In The Final Days Of An Election.”
love to see the FBI playing a decisive role in the final days of an election
— Matt Pearce (@mattdpearce) November 1, 2016
Newsweek Senior Writer Kurt Eichenwald: “Imagine If FBI Came Out In 2000, Just Before Election And Said “‘New Evidence’” About Bush 1996 Investigation, “‘Don’t Know What It Means.’ Horrible.”
Bush investigated in 96. Cleared. Imagine if FBI came out in 2000, just be4 election, said “new evidence, dont know what it means.” Horrible
— Kurt Eichenwald (@kurteichenwald) October 30, 2016
Atlantic Contributing Editor Norman Ornstein: “So Reassuring That The FBI Can Be Trusted Not To Leak Or Attempt To Sway Elections.”
So reassuring that the FBI can be trusted not to leak or attempt to sway elections or outcomes of investigations.What coincidence it is Fox! https://t.co/Ag3ncjX9ez
— Norman Ornstein (@NormOrnstein) November 3, 2016
Ornstein On FBI Investigating Democratic Senate Candidate Donor: “Another FBI Leak To Influence An Election.”
So, another FBI leak to influence an election. Hmmm https://t.co/X9jvRvgmLQ
— Norman Ornstein (@NormOrnstein) November 2, 2016
Ornstein: “Maybe There Is Something To Idea Comey Violated Hatch Act.”
A cascade of stories suggesting FBI move has given Trump momentum,changed the race.Maybe there is something to idea Comey violated Hatch Act https://t.co/vYdMQk53Pq
— Norman Ornstein (@NormOrnstein) November 1, 2016
Ornstein: “FBI Release Of Old Clinton Docs Seven Days Before Election Show The Bureau Under Comey Is Out Of Control.”
FBI release of old Clinton docs seven days before election show the bureau under Comey is out of control.
— Norman Ornstein (@NormOrnstein) November 1, 2016
Ornstein: Comey “Has Damaged FBI Badly, Damaged Himself, Broken Norms & Tainted Election.”
Nicely done by people who like and respect Comey.But Bottom line: he has damaged FBI badly,damaged himself, broken norms & tainted election https://t.co/eL0l6n2uUV
— Norman Ornstein (@NormOrnstein) October 29, 2016
ThinkProgress Justice Editor Ian Millhiser Tweetstorm On Serwer’s Article Argues “There’s No Consequence For [FBI] Breaking The Rules If You Do So To Benefit Republicans.” ThinkProgress justice editor Ian Millhiser wrote a series of tweets expounding on Serwer’s Atlantic article, explaining that rogue FBI agents targeting Clinton have no fear of being held accountable by Republican lawmakers for their “decision to interfere with the election.”
— Ian Millhiser (@imillhiser) November 2, 2016