THE BLOG
10/31/2016 01:23 pm ET Updated Nov 01, 2017

Grappling with the Comey Mess

A little more than a decade ago, James Comey proved that he was made of real metal. As a result of the illness of Attorney General John Ashcroft, Comey was serving as Acting Attorney General. During that period, the Bush White House needed his signature to continue a National Security Agency surveillance program they desperately wished to preserve. He refused. When White House aides attempted to go over his head and get approval directly from Ashcroft on his hospital bed, Comey went to the hospital room to support Ashcroft in rejecting the White House request.

Comey is not a fellow who takes the easy or expedient course. He is not one who yields to political pressure. Contrary to what a number of my Democratic friends are saying, I do not believe he wrote his "bombshell" letter to Congressional committee chairmen last Friday in order to influence the election. In fact, I suspect James Comey finds the prospect of a Trump presidency as frightening as most thoughtful people do. But based on what we now know, the letter was a horrific lapse of judgment which is likely to haunt Comey and the Bureau for years if not decades.

Here is what we know:

• He released information about an ongoing FBI investigation against the strong recommendation of his superiors in the Justice Department who responded according to the Washington Post with this statement, "We don't comment on an ongoing investigation. And we don't take steps that will be viewed as influencing an election.

• The letter he sent was so vague--"the FBI has learned of the existence of emails that appear to be pertinent to the investigation."--and the action so unprecedented as to predictably result in a perception by a large portion of the electorate that the new information provides evidence of wrong doing by one of the presidential candidates.

• At the same time that Comey allowed the vague language in the letter to be released to the public, he used more specific information about the nature of evidence in an internal memo to FBI staff. He stated, "We don't know the significance of this newly discovered collection of emails."

Newsweek Magazine which first reported the existence of the internal FBI memo stated that Comey was trying to "thread the needle" by releasing the letter. His memo acknowledged his awareness of what was likely to occur, "There is a significant risk of being misunderstood" He also stated, "I don't want to create a misleading impression." But he did not come even close to "threading a needle" and based solely on his own statements, he created a huge misimpression of what was known about the nature of the emails at the time he transmitted the letter. On the one hand he is taking an unprecedented step in publicly discussing an investigation without further clarification and on the other he is admitting privately that he does not "know the significance" of the material to be investigated.

Jane Mayer reports in the New Yorker that a former senior Justice Depart Official described Comey's action as follows, "You don't do this, it's aberrational. It violates decades of practice...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."

Mayer also noted that Comey appears to be in direct violation of a departmental directive which states that employees "must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship." To insure fairness, neutrality and nonpartisanship, all departmental officials should consult with the Public Integrity Section of the Criminal Division with respect to "the timing of charges or overt investigative steps near the time of a primary or general election."

Jamie Gorelick and Larry Thompson, former Deputy Attorney Generals under the Clinton and George W. Bush administrations explained the reasoning behind this directive in a column in the Washington Post.

However important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

Gorelick and Thompson further noted that Comey's misjudgment leaves him in a position of having to update the public and Congress on each new development in the investigation, even before he and others have had a chance to assess its significance...

There must be some recognition that it is important not to allow an investigation to become hijacked by the red-hot passions of a political contest.

For decades after the FBIs creation in 1908, there was great controversy as to what powers should be granted to such a force and whether the existence of such a force would endanger democratic institutions. It was, in fact, not until a massacre of FBI agents in Kansas City in 1933 that agents were even allowed to carry weapons. Without question, the most crucial question with respect to whether a national police force is an endangerment to our democratic institutions is whether the vast power invested in such an institution is used in any way to influence the decisions granted to the electorate by the Constitution.

Knowingly or not, Comey has crossed that line. He has placed the investigative powers of the Bureau as a thumb on the scales of public decision making. He has done so with public comments that are at variance his own private statements. The damages go far beyond the potential impact on this election. He has established a precedent for those who wish to follow in his footsteps and use the investigative powers of the government as a weapon influence the outcome of future elections.

Jim Comey has a long career of conducting himself with principle and integrity. At times he has had an almost messianic sense of himself. That sense of personal mission may have provided the grit to stand up to the Bush White House with respect to excessive surveillance but it now seems to have led him down a path which endangers not only his own record of public service but the future of our democracy.

(The author was involved in oversight of the FBI Budget for nearly a decade as a staff member of the House Appropriations Committee)