Ethical Questions Surround FBI Director’s Decision On Email Probe

Ethical Questions Surround FBI Director’s Decision On Email Probe

With a tweet that trumpeted “Case reopened,” Rep. Jason Chaffetz (R-UT) set off a sustained roar of hyperbole about Hillary Clinton’s emails. As chair of the House Oversight Committee, Chaffetz and seven other Republican committee chairs — along with the ranking Democrats — received a very brief letter on Friday from FBI Director James Comey. In three paragraphs, he informed them that while looking into “an unrelated case,” his agents had found “emails that appeared to be pertinent” to the Clinton server investigation. He had directed investigators to look at the emails, he wrote, and determine their significance.

Nothing could be less surprising than the partisan response to this news by Chaffetz’s fellow Republicans, ever ready to string up someone named Clinton immediately, if not sooner. Reince Priebus, eager beaver RNC chair, leapt to fill the big blank spaces left by Comey’s letter.

“The F.B.I.’s decision to reopen their criminal investigation into Hillary Clinton’s secret email server just 11 days before the election shows how serious this discovery must be,” said Priebus, although Comey had not characterized it at all. “This stunning development raises serious questions about what records may not have been turned over and why, and whether they show intent to violate the law,” he added, although Comey had said nothing to support any such negative inferences.

Donald Trump, conning and clowning as usual, went still further before a raucous crowd in New Hampshire: “I have great respect for the fact that the F.B.I. and the [Department of Justice] are now willing to have the courage to right the horrible mistake that they made. This was a grave miscarriage of justice that the American people fully understand. It is everybody’s hope that it is about to be corrected.”

What Trump thinks everybody hopes will be “corrected” was Comey’s recommendation last July against any prosecution of Clinton in connection with her private email server. He pretended not to notice that the FBI director had said nothing to satisfy the manic desire of Trump and his followers to see Hillary Clinton “locked up.”

During the hours that ensued, the news that leaked out from “senior officials” scarcely could have encouraged Trump, Priebus, and their squad of would-be executioners. While the outlines of the renewed investigative effort remained dim, it was still possible to discern what was not happening:

Contrary to Chaffetz’s excited tweet, the FBI director’s letter did not indicate that the bureau has “reopened” its investigation of Clinton.

The emails in question were not found on Hillary Clinton’s email server, although some or all of them may be merely copies of emails previously examined by the FBI.

Those emails did not represent evidence intentionally withheld by Clinton from the FBI.

And there was no indication that those emails had prompted Comey to reconsider his July recommendation against prosecution, or his related conclusion that there was “no intentional misconduct” in the handling of evidence by Clinton and her lawyers.

The unrelated case that led to the email discovery, according to the New York Times, was the investigation of former Rep. Anthony Weiner — recently separated from Huma Abedin, Clinton’s top personal aide — for allegedly sending sexual messages via text to a teenaged minor girl.

In the course of that probe, the FBI had taken electronic devices belonging to both Weiner and Abedin from their Manhattan home. On a laptop used by both, agents reportedly found work-related emails written by Abedin, who was questioned in the original investigation. Since the FBI hasn’t examined those thousands of emails yet, they don’t know whether any of them contains “classified” information or is relevant in any other respect.

Indeed, they evidently don’t even know whether any of these emails is actually “new,” or all are merely copies of documents already produced in evidence.

But to protect himself, Comey decided to disclose the emails’ existence to the Congressional committee chairs within a day after learning of them himself, knowing that the Republicans would instantly exploit and distort that information for partisan purposes. (He knows that because Republican leaders distorted the facts to defame him.) Certainly he had no legal obligation to reveal the existence of the emails before he knew anything about them.

The response of Clinton to these disturbing events was tough, firm, and measured. Rather than indulge in conjecture, she and her campaign manager demanded facts.

In an afternoon statement, John Podesta bluntly noted the unrelenting pressure on Comey from Republicans on Capitol Hill and in the media, replete with accusations of collusion, corruption, and “rigging” the election that the FBI may now have swayed toward Trump:

“Upon completing this investigation more than three months ago, FBI Director Comey declared no reasonable prosecutor would move forward with a case like this and added that it was not even a close call. In the months since, Donald Trump and his Republican allies have been baselessly second-guessing the FBI and, in both public and private, browbeating the career officials there to revisit their conclusion in a desperate attempt to harm Hillary Clinton’s presidential campaign.

“FBI Director Comey should immediately provide the American public more information than is contained in the letter he sent to eight Republican committee chairmen. Already, we have seen characterizations that the FBI is ‘reopening’ an investigation but Comey’s words do not match that characterization. Director Comey’s letter refers to emails that have come to light in an unrelated case, but we have no idea what those emails are and the Director himself notes they may not even be significant.

“It is extraordinary that we would see something like this just 11 days out from a presidential election.

“The Director owes it to the American people to immediately provide the full details of what he is now examining. We are confident this will not produce any conclusions different from the one the FBI reached in July.”

At an evening appearance in Iowa, Clinton stepped before the cameras:

“I have now seen Director Comey’s letter to Congress. We are now eleven days out from perhaps the most important national election of our lifetimes. Voting has already started in our country. So the American people deserve to get the full and complete facts immediately. The director himself has said that he doesn’t know whether the emails referenced in his email are significant, or not. I’m confident whatever they are will not change the conclusion reached in July. Therefore it is imperative that the bureau explain this issue in question, whatever it is, without any delay.”

Writing to FBI  employees on Friday afternoon to explain his decision, the FBI director admitted that “we don’t ordinarily tell Congress about ongoing investigations, but here 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 the Department of Justice has clear guidelines prohibiting its employees, including every official and agent at the FBI, from seeking to influence the political process. In a March 2012 letter to all Justice employees, former Attorney General Eric Holder laid down a clear rule: “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

Holder’s letter also established protocol for all Justice Department employees — a category that includes the FBI director — who must decide how to proceed in a politically sensitive case before an election. “If you are faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election, please contact the Public Integrity Section of the Criminal Division for further guidance.”

Did Comey consult the Public Integrity Section before he contacted the highly partisan Chaffetz and his colleagues? Given his undue haste, that seems unlikely. But either way, the gleeful reaction of the Republicans leaves no doubt as to who got the advantage from the FBI director’s vague little letter. It remains to be seen whether and how he can ameliorate this reckless and ethically dubious act before Election Day — or if he will even try.

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