James Comey: Down the Hatch?

Has FBI director James Comey run afoul of federal law? Richard Painter, the chief White House ethics lawyer in the George W. Bush administration, makes a plausible case:

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

Such acts could also be prohibited under the Hatch Act, which bars the use of an official position to influence an election. That is why the F.B.I. presumably would keep those aspects of an investigation confidential until after the election.

And that is why, on Saturday, I filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics. I have spent much of my career working on government ethics and lawyers’ ethics, including two and a half years as the chief White House ethics lawyer for President George W. Bush, and I never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.

(For the sake of full disclosure, in this election I have supported Jeb Bush, Marco Rubio, John Kasich and Hillary Clinton for president, in that order.)

On Friday, the director of the F.B.I., James B. Comey, sent to members of Congress a letter updating them on developments in the agency’s investigation of Mrs. Clinton’s emails, an investigation which supposedly was closed months ago. This letter, which was quickly posted on the internet, made highly unusual public statements about an F.B.I. investigation concerning a candidate in the election. The letter was sent in violation of a longstanding Justice Department policy of not discussing specifics about pending investigations with others, including members of Congress. According to some news reports on Saturday, the letter was sent before the F.B.I. had even obtained the search warrant that it needed to look at the newly discovered emails. And it was sent days before the election, at a time when many Americans are already voting.

Violations of the Hatch Act and of government ethics rules on misuse of official positions are not permissible in any circumstances, including in the case of an executive branch official acting under pressure from politically motivated members of Congress. Such violations are of even greater concern when the agency is the F.B.I.

Miles Grant also notes that there was no logical basis for Comey’s actions:

Some journalists are trying to claim Comey had no good choice here – that Democrats are mad he told Republicans about emails he hasn’t read yet, but that Republicans would’ve been mad if he’d stayed quiet. This is totally false. Comey had policy to guide him: Don’t discuss cases in public. Comey chose to break that policy 11 days before an election with information he knew his fellow Republicans would use for partisan political purposes against the Democratic presidential candidate. “Republicans would’ve been mad Comey didn’t break policy to fuel partisan attacks” is not a reason to break policy.

Grant also notes that President Obama should have never hired a Republican to run the agency in the first place. Scott Lemeiux hopes that Democratic Presidents stop hiring Republicans in the name of faux-bipartisanship: one wonders if Obama was motivated to hire Comey by the same thinking exhibited in his flawed, though historic, speech to the 2004 Democratic National Convention–
i.e., the idea that most Republicans don’t really put party before country, that only some members of the GOP are bad, that we’re all just alike whether we have a (D) or an (R) next to their names. If Comey’s contemptible choice leads to the election of the man who thought Obama wasn’t even born in this country, one wonders if Obama will look at himself in the mirror before he leaves office, and curse at himself for not smartening up years ago about just how partisan-to-the-bone Republicans are.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.