The director and the candidate: James Comey and the problem of Hillary Clinton’s emails

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Secretary of State Hillary Clinton testifying in 2009. Public domain image.

By Steve Sebelius

There comes a point in former FBI Director James Comey’s new book — A Higher Loyalty: Truth, Lies, and Leadership — in which he concludes a self-examination of his investigation into Democratic presidential candidate Hillary Clinton’s emails by saying “But I also think reasonable people might we have handled it differently.”

Consider me that reasonable person.

There are many — Democrats primarily — who believe Comey’s actions in 2016 cost Clinton the election by providing Republicans and Donald Trump grounds to question her honesty. It’s never easy running for office while one is under FBI investigation.

First, let’s get a few things out of the way. Comey acknowledges there was never any indication in any of the emails his investigators reviewed that indicated Clinton or anyone else involved in those electronic conversations knew or suspected what they were doing was wrong or illegal. Everyone on the email chains had the security clearance (and a work-related reason) to know and discuss the information in question. Clinton did not lie to FBI investigators about what she’d done, at least not in a way that could be proven in court. And, finally, “no fair-minded person with any experience in the counterespionage world … could think this was a case the career prosecutors of the Department of Justice might pursue. There was literally zero chance of that.”

Second, it also must be said that Comey’s investigators found 36 email chains that discussed information classified as “secret,” and eight times in which they discussed information classified as “top secret” at the time the emails were sent. (“Secret” classification applies to information that would cause “serious” damage to national security if released, and “top secret” information is that which would cause “exceptionally grave” damaged to national security if released.)

That, Comey says, is something these officials should have known not to do. “Anyone who had ever been granted a security clearance should have known that talking about top-secret information on an unclassified system was a breach of rules governing classified materials,” he notes.

That was his dilemma during the 2016 election: Comey believed Clinton and her aides had behaved carelessly with classified information, but did not have sufficient information to sustain a successful prosecution. With the national attention fixed on the political race — and partisans from both sides waiting to pounce on the outcome — he was, as the bureau’s deputy director told him at the time, “totally screwed.”

The news conference

After a team had completed its review of all the emails that could be found (some had been lost in a server switch; other, supposedly personal, emails had been erased), Comey held a news conference.

Instead of simply referring the case to the Justice Department with a recommendation of no charges, Comey elected to excoriate Clinton and her staff for being “extremely careless” in their handling of information. The windup sounded like a grand jury would soon be meeting, but Comey instead ended by saying he’d recommended no charges.

Comey explains there are exceptions to the FBI’s policy of not commenting on cases, one of which is when the investigation has been in the public eye. (Although he admits there is a “powerful norm” that the bureau and the Justice Department should try to avoid any action before an election that could affect its outcome, a norm he’d repeatedly ignore.)

Comey further explains he was concerned that the bureau’s “reservoir” of credibility, filled slowly over years with painstakingly professional and through investigations, could quickly be drained with a tight-lipped referral.

“When we stand up, whether in a courtroom or at a cookout, and identify ourselves as part of those organizations [the FBI and the Justice Department] total strangers believe what we say, because of that reservoir. Without it, we are just another partisan player in a polarized world,” Comey writes. “The FBI must be an ‘other’ in this country or we are lost.”

Understandable, even reasonable. But what if Comey had instead said this: “The FBI has completed its investigation into Secretary Clinton’s use of a private server to send official government emails. We’re reviewed hundreds of documents and interviewed dozens of witnesses, including the secretary herself. We are now forwarding the case to the Department of Justice for review. Thank you.”

Surely, there would be critics. Surely, there would be claims of coverups, conspiracy and crimes. Surely, the FBI would be criticized.

But would the situation have been better or worse for Comey’s reservoir than it was with his approach?

“As I expected, people on both sides of the partisan divide in Washington were very angry,” he acknowledged. “Republicans were furious that I had failed to recommend prosecution in a case that ‘obviously’ warranted it.” And Democrats, we know, accused Comey of helping Trump, and would again closer to Election Day.

The election-eve letter

The matter rested, until, in an unrelated investigation of former Congressman Anthony Weiner’s creepy online conduct, FBI agents stumbled across hundreds of thousands of emails from Clinton’s private server, some of which agents believed they had not uncovered in the original investigation. (Weiner was at the time married to Huma Abedin, a top Clinton aide.)

The emails might change the conclusion of the earlier probe, Comey realized, setting up a key question: Should he inform Congress (he’d told lawmakers the case was closed) or remain silent, with the election just days away?

Obviously, the emails would have to be reviewed, which would require a search warrant for the laptop. But the timing was such that agents could not possibly review the newly discovered material before Election Day.

Comey chose to speak. His description of his options — “speak or conceal” — is a false choice in my view, primarily because he didn’t know at the time whether the emails were even relevant to the investigation or not, and as such, there was nothing definitive to say either way! Or, as a lawyer might say, the prejudicial effect of revealing the emails clearly outweighed any probative value in speaking.

Yes, there were some powerful arguments on Comey’s side. First, seeking the search warrant opened the circle of people who knew about the new emails wide enough that the story might very well have leaked. Second, Comey was concerned that if the emails did show prosecutable actions on Clinton’s part — but were not revealed until after the election — she’d be a tainted president, possibly subject to criminal process while in office. And third, failing to speak up might implicate Comey, the FBI and the Justice Department as partisans engaged in a coverup.

“To remain silent at this point, while taking the step of getting a search warrant to review thousands of Hillary Clinton’s emails … would be an affirmative act of concealment, which would mean the director of the FBI had misled — and was continuing to mislead — Congress and the American people,” Comey wrote.

But let me suggest a contrary point: Comey at that moment had no idea whatsoever what was in these newly discovered emails. (We’d later find none were relevant to the inquiry.) He couldn’t possibly know whether he’d misled anyone until his team reviewed them. And given the fact that revealing the case had been temporarily re-opened just days before voters went to the polls would unquestionably have an impact on the election, he could easily have justified remaining silent until there was something substantive to report.

“We made arguments against our arguments, but even with a dozen perspectives, we kept coming back to the same place: the credibility of the institutions of justice was at stake,” Comey wrote. Indeed. But how intact was that credibility after he potentially tainted the election, and then revealed there was nothing in the new evidence to change his earlier conclusion? Better or worse? Surely, he’d be criticized either way, but only in one way would he potentially affect the course of the election.

In fact, Comey was asked by one member of his team whether his action might help elect Trump. Wrote Comey: “’It is a great question,’ I said, ‘but not for a moment can I consider it. Because down that path lies the death of the FBI as an independent force in American life. If we start making decisions based on whose political fortunes will be affected, we are lost.’”

Comey acknowledged in testimony before Congress that the idea that his decision had an impact on the election left him feeling “mildly nauseous.” Indeed, it earned him the contempt of Democrats, and even — he says later — praise from Trump, who saw the first news conference as a help to Clinton but the late-season letter as a help to the Trump campaign.

Comey was generous enough to suggest reasonable people might disagree with his conclusion, and he should be extended the same courtesy in return. Surely, he is at pains to extensively document his motivations. And I am willing to concede that doing things the way I’ve suggested here would have left Comey no less totally screwed than he was for doing things his way. But given the unknowns in the Weiner laptop trove of emails, and the near-certainty of affecting an election just days away, a dose of old-fashioned, buttoned-down FBI probity might have served Comey better.

 

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