Most people didn’t think it was possible, but FBI Director James Comey – as is now known by everyone who hasn’t been locked down in a Zen monastery for the past four days – has just increased the craziness of this already loony and deeply depressing presidential election campaign.
He accomplished this feat with his letter to Congress announcing that FBI personnel are going to review emails that they found while investigating criminal allegations against former Representative Anthony Weiner, estranged husband of key Hillary Clinton aide Huma Abedin. Comey said the emails may be relevant to Clinton’s own email scandal, though the FBI does not yet know their contents.
Comey acted against the practice that the Justice Department, of which the FBI is a part, should not interfere with the democratic process by publicly releasing information that might tip the outcome of the vote within 60 days of the election. But anyone who finds Comey’s behavior puzzling or self-contradictory hasn’t followed the career of this very careful bureaucrat.
What Comey’s behavior makes clear – and has made clear to observers of differing political stripes – is that a public official can do great harm through the expression of a kind of self-important moral vanity.
Comey has proved to be the quintessential bureaucrat, always focused on protecting his own back. That seems to be Comey’s prime motivation and appears to be fueling his intense drive to appear completely “transparent.”
In July he held a press conference to make an extremely careful announcement that the FBI’s “recommendation” in the Clinton email investigation was not to prosecute her even though, in his view, her behavior had been “extremely careless.” Or, as one post put it more succinctly, “I’m going to drop bombs on Hillary’s many email-scheme lies, then announce no prosecution.”
Republican presidential nominee Donald Trump has been apoplectic ever since. But other Republicans have also expressed outrage at what they view as Comey’s favoritism toward Clinton.
Now, Comey has tried to restore his public reputation for balance. Did you think he was too easy on Clinton the last time? Well, he’ll show you: He’ll act so that no one can have the slightest justification for claiming that he has been anything but scrupulously, meticulously evenhanded in his official behavior. Nothing but clean, folks.
The FBI is an investigative agency whose findings enable Justice Department prosecutors to make prosecutorial decisions. Even in the Clinton email scandal, from which Attorney General Loretta Lynch had to recuse herself because of her tarmac meeting with former President Bill Clinton, there were plenty of career officials at the Justice Department who were capable of making the decision about whether to prosecute.
The country did not need the matter to be effectively decided in a public press conference by Comey. Still less did the country need this second public performance from him, which performs no function other than to try to extricate him from the trouble he reaped as a result of his first public performance.
This is not Comey’s first go-round in his need to publicly play a big role by inserting himself into a national debate.
In 2014, after the police shootings in Ferguson, Missouri and other places, Comey asserted that increased scrutiny of law enforcement was emboldening criminals, even as he said there was no data to back this up.
He also delivered a speech on African Americans and the police, in which he pointed to “deep-rooted social problems” causing “tensions with law enforcement.” He concluded it was “almost irresistible” for police to take a “mental shortcut” in enforcing the law. He then balanced this publicly expressed sentiment by announcing his worry, contrary to administration policy, that requiring the police to wear body cameras would lead to less effective law enforcement.
During the administration of President George W. Bush, Comey, then nominally a Republican, became a bête noir to other Republicans partly because of his role in the 2003 case of Valerie Plame, a former CIA operative whose identity had been leaked to the press by someone in the administration. Because Attorney General John Ashcroft had recused himself from the investigation of the leak, Comey, then deputy attorney general, was in charge.
Comey appointed U.S. Attorney Patrick Fitzgerald, as special counsel. The identity of the leaker was discovered soon enough: It was an official in the Defense Department.
But the investigation did not stop. Comey had written a careful letter, not publicly revealed at the time, that confirmed Fitzgerald’s authority was not limited to the questions of who had leaked the information and whether it was a crime. Instead, Fitzgerald’s authority was to extend beyond this to cover all matters related to the investigation – like obstruction of justice and lying to the FBI. It was this expanded authority that was used to indict Scooter Libby, an aide to Vice President Dick Cheney.
Comey also clashed with the Bush White House over domestic surveillance and the dismissal of U.S. attorneys; he left government for the private sector in 2005. In 2007, in testimony to Congress about the U.S. attorney controversy, he used the opportunity to state his view that the Justice Department “had to be seen as the good guys, and not as either this administration or that administration.”
This is the way institutions go off the rails; if we are lucky, we see them derailing themselves and taking steps to stop the slide.
Consider the institution of the independent counsel, established after Watergate to ensure that grubby politics would have no further influence over criminal investigations of high government officials.
Independent counsels were accountable only to judicial panels, not to Justice Department superiors. They had broad powers to determine how far their investigations would go and how long they would last.
After years of cases that ensnared officials in both parties in seemingly endless legal proceedings, some clearly unjustifiable, the legislation authorizing the office of the independent counsel was finally allowed to expire. The institution died an unlamented death.
Maybe now that the FBI director has gored the oxen of both political parties in his insistence that everyone know how virtuously careful and nonpartisan he is, we can exercise our capacity for self-correction once again. Why not return to a more traditional allocation of responsibilities – in which the prosecutors make the decisions about whether to prosecute, after the investigators have investigated and reported the results to them?
Then these prosecutors, as prosecutors have traditionally done, either put up, by getting an indictment, or shut up, without press conferences and public self-justification.
Suzanne Garment, a lawyer, is the author of Scandal: The Culture of Mistrust in American Politics.
The views expressed in this article are not those of Reuters News.