Damn you, James Comey

Irony is a cruel mistress, who gazes down upon the United States and mocks our pain.

In case you were asleep in 2016, then-FBI Director James Comey made a series of public statements that almost certainly cost former Secretary of State Hillary Clinton the presidency. In violation of longstanding Justice Department policy, Comey made highly critical public statements about Clinton, accused her of “extremely careless behavior,” and then made damaging statements about her just days before the election — all in regards to an investigation that later revealed no new information about Clinton.

Clinton’s sin was using a personal email account to conduct official business.

The Justice Department Inspector General’s report examining Comey’s conduct during the 2016 election is utterly damning. In addition to finding that Comey’s “use of a personal email account on multiple occasions” was “inconsistent” with DOJ policy, the report describes a rogue agency head who placed his own personal views above those of his superiors, and above well-established policies.

  • Comey should have kept his mouth shut. The former FBI Director’s original sin was his July 5 press statement, where he announced that “no reasonable prosecutor” would bring charges against Clinton, even as he criticized Clinton and labeled her conduct “extremely careless.” As a general rule, Justice Department policy instructs officials not to make public statements that may influence an election. Comey’s decision to make any statement at all about a decision not to recommend charges was itself highly unusual. The IG report “concluded that Comey’s unilateral announcement was inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct.”
  • Comey intentionally kept his superiors out of the loop. Comey did not just criticize a presidential candidate in violation of the department’s policies, he also did so while intentionally keeping his bosses in the dark. According to the report, “Comey acknowledged that he made a conscious decision not to tell Department leadership about his plans to make a separate statement because he was concerned that they would instruct him not to do it.” In doing so, Comey “usurped the authority of the Attorney General.”
  • Under Comey, the FBI delayed an investigation that eventually exonerated Clinton, even as it devoted resources to defending Comey’s actions. Comey sent his infamous letter to congressional leaders informing them that the FBI may have uncovered additional Clinton emails in an unrelated investigation on October 28, 2016, just days before the general election. According to the report, however, these emails were discovered in late September. Yet the FBI did not act on the emails for a month — even as it devoted resources to preparing a speech by Comey that was “designed to help equip SACs to ‘bat down’ misinformation about the July 5 declination decision” and to preparing “talking points” defending Comey’s actions. Had the FBI investigated these emails sooner, there would have been enough time to complete the investigation, determine that it revealed nothing new about Clinton, and inform Congress of this fact before the election.
  • Comey violated Justice Department policy when he sent The LetterThe IG report’s conclusions on this point speak for themselves: “Much like with his July 5 announcement, we found that in making this decision, Comey engaged in ad hoc decisionmaking based on his personal views even if it meant rejecting longstanding Department policy or practice. We found unpersuasive Comey’s explanation as to why transparency was more important than Department policy and practice with regard to the reactivated Midyear investigation while, by contrast, Department policy and practice were more important to follow with regard to the Clinton Foundation and Russia investigations.”
  • Department leadership was afraid to confront Comey because they feared he was a loose cannon. After learning that Comey intended to send The Letter, Attorney General Loretta Lynch and Deputy Attorney General Sally Yates chose to convey their disagreement with Comey’s through an intermediary, rather than speaking to them himself. Yates says that this decision was made because “they were concerned that direct contact with Comey would be perceived as ‘strongarming’ him, and that based on her experience with Comey, he was likely to ‘push back hard’ against input from Lynch or her.” The IG report “found it extraordinary that Comey assessed that it was best that the FBI Director not speak directly with the Attorney General and Deputy Attorney General about how best to navigate this most important decision and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director.”

In case there is any doubt, there are very good reasons why Justice Department policies forbid Comey’s actions. Comey’s infamous letter disclosed incomplete information to Congress and, ultimately, to the American voters. That left those voters less well-informed than they would have been had Comey kept quiet.

But, more importantly, the fundamental assumption of our criminal justice system is that anyone accused of a crime is innocent until proven guilty, and that the government may not impose punishment until a defendant is found guilty beyond a reasonable doubt. As former Deputy Attorneys General Jamie Gorelick and Larry Thompson explained shortly after Comey sent The Letter, DOJ’s policy exists to “avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.”

In attacking Clinton, especially so close to an election, Comey used the awesome power of the state to punish her — effectively stripping her of a job she very much wanted — despite the fact that she had neither been charged with a crime nor convicted by a court.

And, in doing so, Comey almost certainly changed the course of American history.

In the alternate universe where President Obama named someone other than Comey to lead the FBI, children are not being taken away from their parents at the border. Millions more Americans have health coverage. The federal government did not leave thousands of Americans alone to die in Puerto Rico. The president did not blame a deadly white supremacist rally on “both sides.” DACA is still alive, and the Muslim ban never existed. Racist sheriffs who terrorized Latino communities don’t receive presidential pardons. Partisan gerrymandering is unconstitutional, and employers can’t coerce their workers into signing away their right to join together against an abusive employer.

In the world where Obama picked someone other than James Comey as the nation’s top cop, Scott Pruitt keeps himself busy filing losing lawsuits against the Clinton Administration. Betsy DeVos is a faceless rich person writing big checks to advocates for school vouchers. Rick Perry’s just a former contestant on Dancing with the Stars. And Neil Gorsuch sits ignored in his Colorado chambers, bitterly complaining to his law clerks about labor unions and the EPA.

If Comey had just followed the damn rules, Donald Trump would not have the power to launch a nuclear attack.



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Author: Ian Millhiser

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Just a figment of your imagination.