Democracy & Elections

In Defense of Jim Comey: Politico's Bizarrely Shoddy Attack on the FBI Director

Benjamin Wittes
Wednesday, September 14, 2016, 8:06 PM

An astonishingly bad piece appeared in Politico this week under an admittedly arresting headline: “The Case Against James Comey: Not Since Hoover Has an FBI Director Shown Such a Lack of Accountability.”

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An astonishingly bad piece appeared in Politico this week under an admittedly arresting headline: “The Case Against James Comey: Not Since Hoover Has an FBI Director Shown Such a Lack of Accountability.”

Written by a gentleman named Riley Roberts, a former speechwriter for Eric Holder, it’s the kind of piece that should prompt a certain amount of soul-searching at the publication that agreed to publish it. The thesis is bold. The evidence is shockingly weak. Critical history and information is left out. Quotations are seemingly intentionally distorted. And important information in the story is just wrong.

Let me be very candid in this disclosure: Jim Comey is a friend. Anyone who wants to disregard my critique of this article on that basis should feel free to do so. That said, I don’t think my judgment is clouded here. The Politico piece is a really bad article. And it’s worth spending some time taking it apart.

Roberts’s basic thesis is that “there is a growing consensus that Comey has wielded the powers of the directorship more aggressively than anyone since Hoover—to the consternation, and even anger, of some of his colleagues.” He writes: "Since taking office, Comey has repeatedly injected his views into executive branch deliberations on issues such as sentencing reform and the roots of violence against police officers. He has undermined key presidential priorities such as crafting a coherent federal policy on cybersecurity and encryption. Most recently, he shattered longstanding precedent by publicly offering his own conclusions about the FBI’s investigation into Hillary Clinton’s email."

Roberts's broad thesis is wrong. There is absolutely no consensus about the aggressiveness with which Comey has wielded the powers of the directorship. Comey has his detractors, and he has his admirers.

The notion that Comey has been more unaccountably indepdendent than prior directors is also wrong. Given the long-term, semi-public, multi-front warfare between the Clinton White House and FBI Director Louis Freeh, there simply is not a defensible argument that Comey has out-flanked Freeh in the fifth column department. Freeh’s name does not appear in Roberts’s article. It's a big omission. Freeh publically sparred with the White House and with Attorney General Janet Reno over any number of issues, most famously the conduct of investigations related to campaign finance. Whatever one thinks of the merits of those issues, it simply is not credible to claim that Comey is wielding independent power in a fashion unprecedented since Hoover without a serious examination of Freeh’s tenure.

Yet that is exactly what Roberts does. Since the Clinton email announcement, he writes, “even some of Comey’s supporters have been forced to concede that his exercise of power has been without precedent in the post-Hoover era. Among dozens of current and former Justice Department officials, this realization has given way to a rising sense of alarm: that our next president will find Comey just as untouchable as Hoover once was—and perhaps nearly as troublesome.”

Roberts does not quote dozens of current and former Justice Department officials expressing this “rising sense of alarm.” In fact, he quotes only four contemporary analysts in making his case.

One of them is me.

Roberts quotes the following passage from a piece I wrote expressing anxiety about the civil liberties precedent of Comey’s public statement and testimony about the Clinton email disposition: “There is something horrible about watching a senior government official, who has used the coercive investigative capacities of the federal government, make public judgments about a subject's conduct which the Justice Department is not prepared to indict.”

Here’s the context of that quotation that Roberts doesn’t bother to quote:

Let me start by saying that I do not dissent from FBI Director James Comey's decision to give the remarkably fulsome account we saw this week of the Hillary Clinton email investigation, both in his lengthy statement Tuesday and, particularly, in his marathon testimony yesterday. . . . In his testimony yesterday, he made clear that the extraordinary nature of a criminal investigation of a person who is about to be nominated for President by a major party demanded a degree of transparency that is atypical and that would satisfy reasonable people that the bureau had followed the regular order. That seems right. He was in an impossible position, made far more so by the almost mind-boggling decision of Bill Clinton to publicly compromise the attorney general. Comey's testimony was extraordinary in its candor, both as to his reasoning on his decision not to recommend prosecution and as to the often-minute details of the FBI's findings. To my mind, it was also entirely persuasive.

To be clear, no part of me agrees with any part of Roberts’s thesis, and to the extent my words can be used to support it, they can be used only if quoted very selectively.

Whom else does Roberts quote? Well, there’s Columbia professor Dan Richman, a long-time Comey friend and adviser. Richman, like me, has no rising sense of alarm at Comey’s behavior and told me today that he certainly does not agree with the article’s thesis either.

Roberts also quotes two other people—one a criminal defense lawyer and former federal prosecutor and one who like the author, curiously enough, also worked as a PR aide for Holder. Hmmmm.

The legions of the alarmed, in other words, while asserted repeatedly throughout the piece, never show up in it. They are entirely mythical. There aren’t even anonymous sources. The author literally quotes not a single current Justice Department official in support of his bold claims. The closest he gets is this general citation:

Behind the scenes, others in the executive branch have been considerably less circumspect. “It’s really tough for all the attorneys [to speak out], because they all have to practice before DOJ,” says Matt Miller, who led the Justice Department’s Office of Public Affairs from 2009 to 2011. “But I’ve heard from dozens of officials, both current and former, and not one of them agreed with [Comey’s] decision to hold the press conference.”

By and large, Justice Department lawyers have declined to criticize Comey in public, for fear of angering the FBI director. But in personal conversations and expletive-laden email threads, many were apoplectic at his handling of the Clinton case. One aide described senior officials who should have been involved in the announcement scrambling to watch it on television. Some were particularly incensed by the editorial commentary sprinkled throughout Comey’s statement.

For the record, it simply is not true that it’s really tough for DOJ attorneys to speak out about things that are really bothering them. During the Freeh-Clinton wars, I was working as an editorial writer at the Washington Post. I can personally assure Miller and Roberts that senior Justice Department officials are perfectly capable of venting their frustrations about the FBI director to journalists on background. Sometimes, they even use their flacks to do it for them.

There is, in other words, a reason for the lack of direct sourcing for any of the major claims in this article about the supposedly pervasive attitude at the Justice Department. I think it's that the central claim isn’t true. I spend a lot of time with Justice Department lawyers, current and former—including today, when I was at National Security Division’s 10th anniversary conference. I heard one current DOJ lawyer rhapsodize about Comey's speech at the same conference. I didn't hear anyone worrying about his Hoover-like powermongering. I just don’t think there are dozens of angry attorneys seething about and quaking with fear at the power-mad Comey. Yes, he’s done some things that have pissed people off. And yes, some people think he’s a bit prissy and self-righteous. But the belief that there is some great Comey menace is just not a meme sweeping the Justice Department.

To make Comey into this menace, Roberts has to do more than fantasize armies of alarmed Justice Department veterans. He has to make Comey seem all-powerful too. And in doing so, he says a lot of stuff that’s just dumb.

“It was in 1936,” he writes, “the year after the Bureau of Investigation adopted the word ‘Federal,’ and became the FBI—that Supreme Court Justice Harlan Fiske Stone wrote, of himself and his colleagues on the bench, that ‘the only check upon our own exercise of power is our own sense of self-restraint.’ The same is true of the modern FBI director.”

Actually, the same is not remotely true of the FBI director. The FBI director can be fired by the president, and one post-Hoover director has been fired. To the extent he behaves illegally, the courts have a lot of recourse, starting with the suppression of evidence. The Justice Department also can refuse to bring criminal cases the bureau develops. The FBI director is certainly a powerful figure, but he’s not a god. And lots of actors have levers to pull if they don’t like the way Comey is behaving.

Okay, you say, so maybe Roberts is overstating the matter. But surely he has some evidence that Comey is amassing power and behaving in an unaccountable fashion. Actually not. Here is all of the evidence Roberts cites in the piece of Comey’s Hoover-like behavior:

  • He spoke in defense of mandatory minimum sentences while the administration was trying to effectuate sentencing reform.

  • He suggested publicly that there may be a “Ferguson effect” in which police are being less dilligent because of fears of cameras and fears of being accused of racism.

  • He allegedly scuttled an administration encryption initiative.

  • He held his press conference and gave testimony and released documents on the Clinton email matter.

That’s it. That’s the sum total of the alleged power grab.

Note that these alleged offenses are not remotely of equal weight. The first two amount to nothing more than Comey’s having expressed his opinions on matters of policy concern in criminal justice areas, which is kind of his field. One can agree or disagree with him on either of them (I hate mandatory minimums, myself), but there is nothing wrong with the FBI director’s giving his view of the effect of policy changes on law enforcement. And surely, even if one accepts that Comey has strayed from his lane by expressing these beliefs, such deviations from administration positions by an official appointed to a term of years precisely to guarantee his independence is not the stuff of J. Edgar Hoover.

The scuttling of an encryption initiative would admittedly be more grievous. Writes Roberts,

And early this year, when FBI agents were unable to access an iPhone belonging to the alleged perpetrator of the 2015 San Bernardino terrorist attack, Comey steamrolled his White House and Pentagon colleagues—even scuttling an administration-wide encryption policy that was under development—by insisting that Apple be forced to unlock the phone for the government.

The trouble is that the incident is entirely fictitious. There was no administration-wide encryption policy developing. There was a fierce, intense inter-agency discussion that was nowhere approaching any kind of consensus. The Justice Department, by the way, litigated the Apple case, and it did so even while litigating previous cases it was already pursuing regarding other iPhones. Readers of this site know these cases well. The administration is genuinely divided on encryption. And if the President clearly disagreed with Comey, Comey would lose this fight tomorrow. The reason Comey’s position has had staying power is that the Justice Department and much of the intelligence community supports it, and the President himself clearly has some sympathy for law enforcement’s concerns. The result is a policy deadlock.

So that leaves the Hillary Clinton email matter, on which Comey’s behavior is legitimately controversial. I have expressed my own anxieties about the precedent Comey has set in that case. So I’m not arguing here that there are no grounds for criticism. But Roberts leaves out a critical fact from his account: the small matter of Bill Clinton’s getting on Attorney General Lynch’s airplane the week before the investigation was to publicly conclude.

This put Comey, and Lynch for that matter, in an absolutely untenable position. If he made his recommendations quietly and Lynch acted on them, as Roberts alleged would have been proper, the decision would have had no credibility whatsoever. If Comey did not explain himself, the situation would simply fester and conspiracy theories would too. I am not at all sure whether Comey made the right choice here or not (see the piece I wrote that Roberts quotes), but it was a very hard call, and the situation was a lose-lose proposition. This is not Hoover territory by any means.

So tendentious is Roberts’s treatment of the Clinton matter that the section on it closes with a passage that is perilously close to simple fraud:

In the final analysis, what is most troubling about Comey’s handling of the Clinton email case is not the fact that it represents an escalation of an established pattern—or even that there is no mechanism for preventing a repeat performance. What is most troubling is that, at its core, the whole affair had relatively little to do with Hillary Clinton. It was, in Comey’s own words, a “way to maximize” his agency’s reputation: a bid to advance not the interests of justice, but the interests of James Comey.

Do you really believe that the FBI director actually said that his goal in the Clinton email affair was to maximize his agency’s reputation and to advance his own interests? I didn’t either. And guess what? He didn’t. Here’s what Comey actually said at an ABA event in San Francisco in August, in response to a question about why he announced the results of the email investigation:

​What was different about this was we decided to share particularly our recommendation and our evaluation of the case....First of all, I thought transparency was in order given the extraordinary interest in the matter from the American people, and Justice Department policy and regs recognized that there may be circumstances of extraordinary public interest, and this struck me if there ever was one, this is it. I thought it was important for the FBI to speak about this because I thought that was the way most likely to offer a transparency that would reassure the American people [that] this investigation was done in the right way. I thought given all the other things going on, an independent statement by the FBI was consistent with three things that I care deeply about. The reputation of the FBI, the reputation of the entire Justice Department, and a broader sense of justice in the country. I thought the way to maximize all three of those was to do something unprecedented, which was an entirely independent statement.

Politico should give some serious thought to how it came to publish this piece. The facts it reports do not remotely support the conclusion the article puts forth. And at least a few big facts the article contains are also not true. An after-action report on this journalistic train wreck would be valuable.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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