Breaking Rules And Precedent, FBI Director James Comey Informs Congress Of Discovery Of Emails Potentially “Pertinent” To Clinton Email Investigation

Comey Letter: FBI Reviewing Additional “Emails That Appear To Be Pertinent To The Investigation” Of Clinton’s Use Of Private Email Server, “Cannot Yet Assess Whether Or Not This Material May Be Significant.” In his three-paragraph October 28 letter to congressional leaders, Comey wrote that “In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation” and is is taking “appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.” He added that the “FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete.” [The New York Times, 10/28/16]

Yahoo News: Comey Unaware Of Contents Of Emails Because FBI Has Yet To Review Them, May Not Contain New Material. Yahoo News reported on October 29 that at the time of the letter, “Comey and other senior FBI officials were not aware of what was in the emails — and whether they contained any material the FBI had not already obtained.” Yahoo News further reported that the FBI had yet to obtain a search warrant to read the emails and thus is “still in the dark about whether they include any classified material that the bureau has not already seen.” From Yahoo News:

When FBI Director James Comey wrote his bombshell letter to Congress on Friday about newly discovered emails that were potentially “pertinent” to the investigation into Hillary Clinton’s private email server, agents had not been able to review any of the material, because the bureau had not yet gotten a search warrant to read them, three government officials who have been briefed on the probe told Yahoo News.

At the time Comey wrote the letter, “he had no idea what was in the content of the emails,” one of the officials said, referring to recently discovered emails that were found on the laptop of disgraced ex-Rep. Anthony Weiner, the estranged husband of top Clinton aide Huma Abedin. Weiner is under investigation for allegedly sending illicit text messages to a 15-year-old girl.

As of Saturday night, the FBI was still in talks with the Justice Department about obtaining a warrant that would allow agency officials to read any of the newly discovered Abedin emails, and therefore was still in the dark about whether they include any classified material that the bureau has not already seen.

“We do not have a warrant,” a senior law enforcement official said. “Discussions are under way [between the FBI and the Justice Department] as to the best way to move forward.”

That Comey and other senior FBI officials were not aware of what was in the emails — and whether they contained any material the FBI had not already obtained — is important because Donald Trump’s campaign and Republicans in Congress have suggested that the FBI director would not have written his letter unless he had been made aware of significant new emails that might justify reopening the investigation into the Clinton server. [Yahoo News, 10/30/16]

The New Yorker: “Comey’s Decisions Is A Striking Break With The Policies Of The Department Of Justice.” The New Yorker reported on October 29 that Comey’s release of the letter contradicted long-standing DOJ policies against taking actions that could influence election results, citing current and former federal legal officials. From The New Yorker (emphasis added):

On Friday, James Comey, the director of the Federal Bureau of Investigation, acting independently of Attorney General Loretta Lynch, sent a letter to Congress saying that the F.B.I. had discovered e-mails that were potentially relevant to the investigation of Hillary Clinton’s private server. Coming less than two weeks before the Presidential election, Comey’s decision to make public new evidence that may raise additional legal questions about Clinton was contrary to the views of the Attorney General, according to a well-informed Administration official. Lynch expressed her preference that Comey follow the department’s longstanding practice of not commenting on ongoing investigations, and not taking any action that could influence the outcome of an election, but he said that he felt compelled to do otherwise.

Comey’s decision is a striking break with the policies of the Department of Justice, according to current and former federal legal officials. Comey, who is a Republican appointee of President Obama, has a reputation for integrity and independence, but his latest action is stirring an extraordinary level of concern among legal authorities, who see it as potentially affecting the outcome of the Presidential and congressional elections.

“You don’t do this,” one former senior Justice Department official exclaimed. “It’s aberrational. It violates decades of practice.” The reason, according to the former official, who asked not to be identified because of ongoing cases involving the department, “is because 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.”

Traditionally, the Justice Department has advised prosecutors and law enforcement to avoid any appearance of meddling in the outcome of elections, even if it means holding off on pressing cases. One former senior official recalled that Janet Reno, the Attorney General under Bill Clinton, “completely shut down” the prosecution of a politically sensitive criminal target prior to an election. “She was adamant—anything that could influence the election had to go dark,” the former official said.

Four years ago, then Attorney General Eric Holder formalized this practice in a memo to all Justice Department employees. The memo warned that, when handling political cases, officials “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.” To guard against unfair conduct, Holder wrote, employees facing questions about “the timing of charges or overt investigative steps near the time of a primary or general election” should consult with the Public Integrity Section of the Criminal Division. [The New Yorker, 10/29/16]

Media Figures From Across The Political Spectrum Pan Comey And Demand FBI Release More Information

Fox’s George Will: “This Is A Content-Less October Surprise … The Country, At This Point, Immediately Needs Some Context For All This.” George Will criticized Comey’s letter to Congress, calling it “baffling,” and adding that “The duty of the FBI is to investigate, and when it thinks it has concluded an investigation, to pass its conclusion on to the prosecutorial arm of the Department of Justice, not to write letters to the legislative branch of government.” From the October 10 edition of Fox Broadcasting Co.’s Fox News Sunday:

CHRIS WALLACE (HOST): What do you make of Comey's decision to reopen the investigation, and to tell Congress about it over the objection of the Justice Department?

GEORGE WILL: Well, it's baffling. The headline coast coast is, “FBI has new evidence.” There's no evidence whatever yet that there is new evidence pertaining to the email thing, because this is a content-less October surprise at this point. What Mr. Comey said is the emails appear to be pertinent. Well, they can be pertinent without being significant, because they can be redundant in demonstrating extreme recklessness, the category the FBI invented to avoid accusing her of gross negligence, which is a felony. 

So we perhaps, and we don't know this, perhaps FBI has already seen these documents. They don't know whether they're duplicate or not. After Mr. Comey has said no reasonable prosecutor could have looked at what they've already looked at and proceeded with a case. Now, the “I” in the acronym FBI says investigation. The duty of the FBI is to investigate, and when it thinks it has concluded an investigation, to pass its conclusion on to the prosecutorial arm of the Department of Justice, not to write letters to the legislative branch of government. People say, well, this is happening 11 days before the election. No, no, 17 million votes have already been cast. It's happening in the middle of the voting. 

And finally, it is said that one of the reasons he rushed to do this, Mr. Comey, is he was afraid of a leak. The FBI can't be trusted not to leak its own investigations? As Chairman Grassley of the Senate Judiciary Committee said with some understatement, that the country, at this point, immediately needs some context for all this. [Fox Broadcasting Co., Fox News Sunday, 10/30/16]

Fox’s Jeanine Pirro: Comey’s Letter “Disgraces And Politicizes The FBI.” Fox News host Jeanine Pirro blasted Comey’s decision, saying that his letter “both disgraces and politicizes the FBI.” Pirro noted that “the FBI's policy to not comment publicly about politically-sensitive investigations within 60 days of an election exists for a very important reason” and added that “whether it's Hillary Clinton or anyone else, Comey's actions violate not only long-standing Justice Department policy,” but also “the most fundamental rules of fairness and impartiality.” From the October 29 edition of Fox News’ Justice with Judge Jeanine:

JEANINE PIRRO (HOST): FBI Director Jim Comey's announcement yesterday that he would again look into Hillary Clinton's emails after he announced on July 5th the conclusion of that very investigation, saying no reasonable prosecutor would indict, 11 days before one of the most hotly contested presidential election of out time, both disgraces and politicizes the FBI and is symptomatic of all that is wrong in Washington. Now, you know I support Donald Trump and I want him to win. But whether it's Hillary Clinton or anyone else, Comey's actions violate not only long-standing Justice Department policy, the directive of the person that he works under, the attorney general. But even more important, the most fundamental rules of fairness and impartiality.

Ten years ago, when I was the Republican conservative candidate for New York Attorney General, in the home stretch of a statewide campaign, the Justice Department and the FBI violated their own policy against making public statements that would effect an election, and announced to the press that they were opening an investigation of me. It was mean-spirited and, of course, nothing came of it. Except the adverse publicity cost me at the polls. What was done to me in 2006 was wrong. And what happened to Hillary Clinton yesterday was equally wrong.

The Justice Department and the FBI's policy to not comment publicly about politically-sensitive investigations within 60 days of an election exists for a very important reason. Announcements so close to elections have an impact. Now, this nation has already gone through an exhausting and traumatic campaign season. The FBI director should not now be front and center. One of the most revered agencies in our nation's history, now seen as putting its finger on the scales of justice should not now be front and center.

So why did he do it? Some say Comey didn't have a choice because he said to Congress that the investigation was over. Wrong. I read that testimony. Others suggest a mutiny at the FBI was underway because the investigation was never real. Maybe he feared local police involvement, the New York City Police Department in the pedophile investigation on the Huma Abedin, Anthony Weiner computer might have leaked that the first investigation simply was not thoroughly investigated. Maybe he felt guilty, needing a second bite at the apple. And 11 days before an election? How is it that he sends a letter to Congress? He could simply have gotten a ranking member of the committee and that member's deputy and told him, and then said, “if this gets out, I'll know that you did it.” But it doesn't matter now. [Fox News, Justice with Judge Jeanine, 10/29/16]

Wash. Post Editorial Board: Timing Of Comey’s Letter Was “Unfortunate, Given Its Potential To Affect A Democratic Process In Which Millions Of People Are Already Voting.” The Washington Post editorial board wrote that the timing of Comey’s letter was “unfortunate, given its potential to affect a democratic process in which millions of people are already voting,” and sets “a precedent that future partisans who are unhappy with the results of FBI investigations may exploit.” From the October 28 article:

POLITICAL TENSION is running high in the United States, extraordinarily so, we’d say. And so it behooves everyone in a position of official responsibility to do everything he or she possibly can to help maintain stability — while avoiding all avoidable provocations — until the bitter competition between Hillary Clinton and Donald Trump runs its ugly course on Nov. 8.

That is the context for Friday’s announcement by James B. Comey, director of the Federal Bureau of Investigation, that his agency is again looking into Ms. Clinton’s private email server in light of newly discovered emails “that appear to be pertinent to the investigation.” Mr. Comey may have had good reason to inform Republican committee chairmen in Congress of the review, but his timing was nevertheless unfortunate, given its potential to affect a democratic process in which millions of people are already voting.

[...]

Mr. Comey went too far, however, in providing raw FBI material to Congress, notwithstanding its important oversight role; that attempt to appease Republicans set a precedent that future partisans who are unhappy with the results of FBI investigations may exploit. [The Washington Post, 10/28/16]

NY Times’ Frank Bruni: Comey’s “Desire To Be A Boy Scout May Have Eclipsed Sound Judgement Here.” In an opinion piece titled “Comey, Clinton and This Steaming Mess,” New York Times columnist Frank Bruni criticized Comey’s decision, writing that “his desire to be a Boy Scout may have eclipsed sound judgment here, and rectitude is a quaint, shortsighted notion in an election this rife with accusations of bias, this primed for scandal, this frenzied.” From the October 29 article:

Comey obviously felt that he was in a bind and clearly believed that by disclosing the emails as soon as possible — and not, say, delaying until he had some sense of what the F.B.I. was dealing with — he had the best chance of avoiding any possible charges of a cover-up later, and was acting with the cleanest conscience.

But his desire to be a Boy Scout may have eclipsed sound judgment here, and rectitude is a quaint, shortsighted notion in an election this rife with accusations of bias, this primed for scandal, this frenzied.

Were the emails in question sent to or from Clinton? Comey didn’t and perhaps couldn’t say. What about them warranted inspection? Again, he had nothing to offer.

[...]

It wouldn’t be normal practice for the F.B.I., in an effort to buttress its determination, to release the emails, many of which are presumably private communications of Abedin’s. And those might be too intimate for her to make public herself. But now that Comey has flagged the whole batch of them, suspicion will never die.

And if the emails are fresh cause for concern, will that be knowable, and digestible, before Nov. 8? On this point, too, we’re all in the dark. [The New York Times, 10/29/16]

Vox’s Matthew Yglesias: “Having Set Off This Whole Cascade With His Letter, Comey Owes It To The Country To Explain In More Detail What’s Going On.” Vox’s Matthew Yglesias wrote, “Having set off this whole cascade with his letter, Comey owes it to the country to explain in more detail what’s going on.” Yglesias noted that “Comey is not a partisan hack, but he’s also not a political naif,” and, “having intervened in the electoral endgame, he can’t play dumb and just walk away from the bomb he threw.” From the October 28 article:

Beyond that, we don’t know anything. And in fact, we don’t even have any official confirmation of the Weiner connection. And even though I’m sure Comey has no desire to see himself or the FBI get dragged deeper into the partisan muck, the reality is that having the final weeks of an election season focus on a series of unverified leaks from unknown FBI officials isn’t workable. Having set off this whole cascade with his letter, Comey owes it to the country to explain in more detail what’s going on.

[...]

Having waded this far into this, Comey owes us a clearer account of what’s going on. Is it true the new information comes from Weiner’s phone? Why did the FBI decide to pivot the Weiner investigation in this direction in the first place? What, exactly, is the bureau investigating? How long is it expected to take? This is not the kind of information the FBI normally reveals about an ongoing investigation. But the FBI director also doesn’t normally slag people with negative commentary in press conferences nominally dedicated to announcing their exoneration. Comey is not a partisan hack, but he’s also not a political naif.

Forced into a difficult situation, he chose to wade outside normal practice because he understood the political stakes. New events have forced him further down that path, and now he needs to wade even further. It’s easy to see why Comey felt he couldn’t simply wait 12 days and inform Congress after the election. But having intervened in the electoral endgame, he can’t play dumb and just walk away from the bomb he threw. The practical alternative to him saying more is the investigation being conducted by anonymous sources and unverified leaks, as the FBI has already proven incapable of genuinely saying nothing about this matter. We need to know what’s going on, and he ought to tell us, clearly and on the record. [Vox, 10/28/16]

CNN’s Fareed Zakaria: Comey’s Decision “Break[s] With Longstanding Practice And Established Procedures.” CNN’s Fareed Zakaria called the timing of Comey’s letter “unfortunate, since Justice Department guidelines expressly advise its officers to be careful not to be anything, through action or announcement, that could interfere with elections or the democratic process.” Zakaria noted that “Not since J. Edgar Hoover has an FBI director positioned himself as a player in the political realm,” and “Comey's decision to provide the lively color commentary on his decisions to testify to Congress, to send them raw FBI data, and now send them this vague letter are all a break with longstanding practice and established procedures.” From the October 30 edition of CNN’s Fareed Zakaria GPS:

FAREED ZAKARIA (HOST): There are so few details provided by FBI Director James Comey that it is impossible to know what to make of his decision to inform Congress about new emails relating to Hillary Clinton's server. The timing is unfortunate, since Justice Department guidelines expressly advise its officers to be careful not to be anything, through action or announcement, that could interfere with elections or the democratic process. 

It also raises a larger issue. The United States has gone too far down the road of criminalizing public policy. When your opponents do something wrong, even profoundly wrong, in politics, it is often best to treat it for what it is. Bad judgment, bad policy, bad ethics, and to make the case to the electorate to hold those people accountable. It should not be standard practice to instantly begin searching for ways to treat that behavior as criminal. This has been a bipartisan problem. When Democrats controlled the legislature under the Reagan administration, they turned the Iran-Contra Affair into a legal matter, which resulted in the appointment of an independent counsel, years of inquiries, and bitter partisan divisions.

Then came the Clinton years when the zeal exploded. The investigations of Bill Clinton consumed public attention, cost tens of millions of dollars, and resulted in an impeachment that was totally unrelated to the original alleged offense, Whitewater, on which no charges were ever filed. The last two presidencies have seen something of a respite from these witch hunts, but it seems possible that we are ramping up again for a round of criminalization of policy differences. 

House Republicans are now promising years of hearings and inquiries should Hillary Clinton be elected president. The FBI and the Justice Department in particular should stand as independent institutions and not be swayed by demands made by partisans on either side. James Comey's decision to provide the lively color commentary on his decisions to testify to Congress, to send them raw FBI data, and now send them this vague letter are all a break with longstanding practice and established procedures. 

Not since J. Edgar Hoover has an FBI director positioned himself as a player in the political realm. The power to use the state to put someone in jail is an awesome authority. It should not be used against political opponents. It poisons the public arena. It makes politics a life and death affair, and it reminds one of third world banana republics, not an advanced democracy. [CNN, Fareed Zakaria GPS, 10/30/16]

ABC’s This Week Panelists: Comey’s Letter “Short-Changed” Voters Out Of Ability To “Make An Informed Vote.” Republican strategist Ana Navarro criticized Comey’s letter to Congress, saying that, “as an American voter,” she feels “short-changed” by the information in Comey’s letter, adding that “we know more about Anthony Weiner's sexts than we do about these emails that are shaking the election.” Washington Post columnist EJ Dionne added that, “From the beginning” of the email investigation, Comey “has shown that he is responsive to ... pressure from the Republican Congress,” and, “what it looks like is, he feels under pressure from Republicans on the Hill.” From the October 30 edition of ABC’s This Week:

ANA NAVARRO: He should be under tremendous pressure. I've got to tell you, as an American voter, I feel short-changed. I want to make an informed vote, and right now, we have no information. I think this thing is going to go through cycles, because when we first heard about it, it was jaw-dropping. Then we're realizing the FBI director doesn't know much. The reason he can't tell us much is because he doesn't know much. You all realize, we know more about Anthony Weiner's sexts than we do about these emails that are shaking the election? And the only thing Anthony Weiner can run for is president of the national pervert association.

[...]

EJ DIONNE: From the beginning he has shown that he is responsive to A, pressure from the Republican Congress. By the way, we saw in your earlier segment where the Republicans wanted to go, and Congressman Goodlatte accidentally said, “potential impeachment,” and then quickly set himself up. This is a Republican Congress that wants to get Hillary Clinton no matter what. And so he says, “there's not anything here that allows me to indict her, but I'm going to go out there and say she's extremely careless.” Then he turns over all of this -- some raw data to Congress from the investigation? That was very unusual. And, what it looks like is, he feels under pressure from Republicans on the Hill, and from some of the reporting from conservative FBI agents who were mad at him for not bringing the case against her, and that's a really troubling thing. [ABC, This Week, 10/30/16]