Until this past weekend, it was easy to construe FBI Director James Comey’s extraordinary intrusions into the presidential campaign this year as consistent with a career defined by bureaucratic turf protection, and defensiveness of the institutions he’s served. These aren’t always the most high-minded or important principles, but they’ve helped distinguish him from scores of unprincipled opportunists who’ve held and hold positions of high power in our government.
When Comey made the unprecedented decision in July to announce his determination that neither Hillary Clinton nor any of her aides should be prosecuted for mishandling classified information—but to nevertheless scold them for their careless conduct in highly public venues—many liberals wondered whether Comey was acting on the basis of partisan or personal biases. He’s a career Republican, after all, and was even a special counsel on the Senate’s Whitewater committee two decades ago.
But in truth it was fairly easy to explain Comey’s decision without reaching for the assumption of partisan motives. With interest in the Clinton email probe so pitched, and internal FBI dissent boiling over, exculpating Clinton (“the case itself was not a cliffhanger”) while criticizing her conduct (“extremely careless”) was arguably the only way for him to conclude the inquiry without harming the FBI’s integrity, causing a revolt within its ranks, or allowing the closure of the investigation to be turned into a one-sided partisan cudgel.
The recent discovery of emails that may have passed through Clinton’s home-brew server during an unrelated federal investigation of Anthony Weiner, the estranged husband of Clinton’s closest aide, Huma Abedin, brought very similar considerations to the fore. To say nothing, as protocol dictated, would damage both Comey’s reputation and the bureau’s, if and when rogue agents leaked word about the email discovery to the press or the GOP Congress. Commenting publicly, by contrast, risked thumbing the scales of the election in opposite ways that were just as, if not more damaging to the FBI’s integrity and his own. To strike an appropriate balance (make another extraordinary statement, without clear partisan effect) would have required extreme precision.
To the extent Comey sought such balance, his letter to lawmakers on Friday failed miserably. He wrote, in his words, to “supplement [his] previous testimony” that the FBI “had completed its investigation of former Secretary Clinton’s personal email server,” because FBI officials would be seeking access to emails, the significance of which they “cannot yet assess.” In other words, Comey was placing Clinton in a state of investigative limbo because his agents found some emails that may amount to nothing.
He and the Bureau are now under a dark and cross-ideological cloud of suspicion. On Sunday, Senate Minority Leader Harry Reid sent Comey a letter suggesting his free disclosure of information about the Clinton email investigation, combined with his reluctance to disclose what Reid describes as “explosive information [Comey possesses] about close ties and coordination between Donald Trump, his top advisors, and the Russian government,” represents a violation of the Hatch Act, which prohibits government agents from using their official powers to influence the outcome of an election.
“Your actions in recent months have demonstrated a disturbing double standard for the treatment of sensitive information, with what appears a clear intent to aid one political party over another,” Reid wrote. “Through your partisan actions, you may have broken the law.”
By contrast, Republicans, up to and including Trump, are storming the campaign trail to willfully and euphorically distort Comey’s words. Clinton, along with her allies and her enemies, are demanding more information. Those FBI agents unhappy with what they view as the Bureau’s and the DOJ’s insufficient fervor for investigating Clinton are leaking freely, with impunity to create an aroma of criminality around Clinton—a horrifying window into the way law enforcement agencies at all levels of government would behave under the protection of a Trump presidency. If Comey’s goal was to protect the Bureau (manage internal dissent, maximize public faith in its independence, preserve his reputation as a distinguished public servant) he has accomplished just the opposite.
And here is where this entire framework for analyzing Comey’s conduct grows rickety. According to NBC News’ Pete Williams, the country’s premiere Justice Department reporter, Comey has no plans to address this issue again before the election on November 8. That makes it much harder to assume anything generous about his motives. If in trying to manage an extraordinary situation in an above-board way, Comey made a catastrophic error, the above analysis would point to him cleaning up his own mess, quickly. The fact that he is unwilling to do so suggests protecting the Bureau’s integrity wasn’t his prime motive after all.
It is possible to imagine a version of the letter Comey wrote to Republican congressional investigators that wasn’t open to such easy and devious misconstruction. After all, the firestorm didn’t stem from Comey’s decision to announce that more emails had been discovered per se, but from Representative Jason Chaffetz—the top investigator in Congress—claiming the investigation into Clinton’s emails had been “reopened.”
But this is at best a tendentious, if not outright dishonest representation of what the FBI’s interest in these unread emails is.
As his former Justice Department colleague Jack Goldsmith explains, Comey hasn’t really “reopened” the Clinton email investigation. “[T]he language Comey used in his letter suggests something less than a full reinvigoration of the investigation…something more like a preliminary inquiry to figure out what, if any, aspects of the earlier investigative conclusions might require revisiting.”
This is consistent with Comey’s own July testimony to Congress. Asked by Texas Representative Lamar Smith if he would “reopen the Clinton investigation if [he] discovered new information that was both relevant and substantial,” Comey explained, “it’s hard for me to answer in the abstract—we would certainly look at any new and substantial information.”
Comey apparently recognized, too, that his acknowledgement of the Abedin emails could be spun unscrupulously. In a Friday memo to FBI employees, he suggested what has now been widely reported—that the FBI has no idea what’s in these emails, let alone whether they’re duplicates of ones they’ve already reviewed—while admitting his letter to Congress stood a “significant risk of being misunderstood.”
His assessment of this risk has been almost comically vindicated. For three days now, Clinton’s critics have used Comey’s letter to falsely claim she is once again the subject of a criminal investigation—and that Comey wouldn’t have intervened unless the content of the emails were especially damning, when, in Comey’s words, “we don’t know the significance of this newly discovered collection of emails.” The vagueness of Comey’s letter gives these immense political lies a horrifying patina of plausibility.
Comey wrote to FBI employees about “trying to strike [a] balance” between informing the public and creating “a misleading impression.” But he missed the sweet spot wildly. As news of his letter to Congress broke, stocks plummeted and the partisan implication of his intervention became clear. It has ignited a feeding frenzy that has drawn the FBI and the Democratic Party into open but asymmetric battle: Democrats with a bully pulpit; FBI agents with the power to eradicate the assumption of a major party presidential candidate’s legal innocence through targeted leaks.
Reid’s remarkable missive to Comey must be understood in this light. It is not exactly fair of Reid to equate Comey’s unusual transparency and officiousness about the Clinton investigation with his comparable reticence about Trump-related inquiries. After all, Comey only broke his silence about the Clinton investigation after the investigation had run its course. But Reid is absolutely within his rights to believe that the effect of Comey’s actions—the way his words have been interpreted, and the forces they have unleashed—has been to place the most powerful law enforcement agency in the world on the side of one party’s candidate for the presidency and against the other’s.
Comey could undo a great deal of the damage he’s already done by coming forward one more time, without further delay, to dispel the “misleading impression” he helped create—to clarify that Clinton isn’t again the subject of an FBI criminal investigation; that the content of these emails is unknown; that they may well be duplicates or otherwise irrelevant to their investigation; and to atone for the fact that his effort to be evenhanded failed in ways that unnecessarily undermined Clinton’s campaign, and thus, possibly, the integrity of the election.
Comey’s been painting outside the lines since July, and strayed further still on Friday. Many have argued he never should have departed from protocol in the first place. His rejoinder has been that protocol didn’t account for the highly unusual circumstances he and the FBI faced—“I said I would do something unprecedented because I think it is an unprecedented situation,” he told the House Oversight Committee in July. “Now, the next director who is criminally investigating one of the two candidates for president may find him or herself bound by my precedent. OK, if that happens in the next 100 years, they will have to deal with what I did. I decided it was worth doing.”
This argument isn’t entirely without merit, but it also obligates him to consistently reevaluate how well his new precedent is holding up, and whether it needs to be readjusted. The irony Comey didn’t anticipate is that the next director to be bound by his precedent would be himself. For him to retreat back inside the lines now would be an unforgivable copout, placing him and agents under his direction firmly, if unwittingly, on the side of Republican partisans trying to swing an election, rather than on the side of the public, the FBI itself, or any other neutral interest. The only way for him to clean up this mess is to venture into uncharted territory once again.