Comey Was Wrong In July, And He Is Wrong Now

Comey missed the Watergate standard of "heroism"--by far.
But he can still fix this.

Back in July, it came as a relief to many supporters of Hillary Clinton when FBI Director James Comey exonerated Clinton for any mishandling of her emails.

This writer had a different view, observing at the outset that Comey's own statements (tying together his July 5th press conference and his Congressional hearing two days later) confirmed that Secretary Clinton had violated neither any hard law, nor even softer policy rules, concerning the handling of emails -- this because (i) no classified email ever crossed her private server; (ii) FBI forensics showed no hacking of her private server--a server which was no less secure than the official State Department server; and (iii) Clinton routinely used a separate, encrypted and secure State Department server for genuinely classified and sensitive documents.

Given all of the above, a reasonable reader of that column may have wondered how Comey could possibly have concluded that Secretary Clinton and her colleagues were "extremely careless" in their handling of certain sensitive information.

This writer has a theory about what Comey was up to. The notion that Hillary Clinton would be indicted based on what the FBI found in her handling of emails was always preposterous. But given this uber-partisan year, the posturing of vicious attack dogs in Congress, and the unfortunate tarmac incident in Phoenix, Comey felt he had to leaven his non-indictment decision with a tongue-lashing of Hillary Clinton and her colleagues. In so doing, he overplayed his hand―and, in overreaching, he also got many of his facts wrong. ...

In the end, there was a political angle to Comey's behavior after all, but his tongue-lashing had a perhaps unexpected, and decidedly unhappy, effect. It opened the floodgates of mock hand-wringing, conspiracy theories, and faux mistrust, all directed by Congressional Republicans against one of their own and against that most honorable of non-partisan institutions which he leads.

Fast forward to today. It is no surprise that the politically-biased hand Comey played back in the summer came back to haunt him -- and all of us -- in late October. Only now, the stakes are so much higher.

Pilloried by Donald Trump and many Congressional Republicans for his "not prosecute" decision that was completely reasonable to anyone with a law degree, Comey seems now to have instinctively jumped at the chance to demonstrate his GOP bona fides, and to save himself from very unpleasant hearings (or worse) were he to have held back his empty revelation until after November 8, as Justice Department policy rules required.

Trump reacts to all this by calling the Clinton email issue "worse than Watergate," and labels Comey a hero. Exactly the opposite is true. Compare Comey's actions with those of Republican Justice Department officials in the Watergate era who resigned their positions, rather than bow to Presidential pressure or violate the law. Those people were heroes, because they acted heroically.

Public servants like James Comey are sworn to uphold the law. Indeed, public service is a privilege, in return for which the office-holder accepts the risk of criticism for following the rules, no matter what that criticism may be. Yet, rather than face the post-election censure that may have accompanied his following of Justice Department rules and guidelines, Comey took the easy way out.

There is a simple word for his behavior: cowardice.

Much of the damage caused by Comey's Friday letter has already been done, but some of it can be repaired. Even if he cannot release clear information about the new emails, Comey can articulate three things about the vague letter he sent last Friday. Immediately he should:

(1) State whether it is possible to characterize those emails, with specificity--and the extent to which they relate, if at all, to the FBI's earlier investigation of Secretary Clinton's emails;

(2) If still unable to accurately describe those emails, state plainly that the FBI does not have enough information about their content to know whether they are, in fact, pertinent to the earlier investigation; and

(3) Make a "juror-like" instruction to the American people that no one should presume anything about these new emails--and in particular, that they should not be seen as remotely incriminating of Hillary Clinton, or anyone else.

In the words of my old law school professor (of legal ethics!) Alan Dershowitz, Comey should say:

I felt obligated to tell Congress about this development, but because we are not yet aware of the content of the emails, it would be unfair for any candidate or voter to infer from my letter that there is anything in them relevant to the election. This is especially the case since it is unlikely that our investigation will be completed before the election.

Better yet, he should apologize for the letter he wrote, and for its timing.

If Comey doesn't do these things, then fictions, lies and innuendos will likely carry the day, and American democracy will be diminished due to the handling of this matter. The integrity of the FBI will be tarnished for a long time to come. The Republican Party will be further devalued. And Hillary Clinton, who deserves none of this, will have to spend precious time overcoming patent falsehoods.

As we approach Election Day, Hillary Clinton has better things to talk about. The fate of our country hangs in the balance.