Published by The Lawfare Institute
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Yesterday, FBI Director James Comey threw the presidential election campaign into turmoil with a letter to Congress declaring that the Clinton email matter was, perhaps, not entirely done after all.
The Clinton forces are furious, with the candidate declaring that “we are 11 days out from perhaps the most important national election of our lifetimes, voting is already underway in our country, so the American people deserve to get the full and complete facts immediately,” and campaign chairman John Podesta saying, “It is extraordinary that we would see something like this just 11 days out from a presidential election.”
The Trump forces, meanwhile, are triumphant, with Trump—who only recently was calling the FBI corrupt—saying, “I have great respect for the fact that the FBI and the Department of Justice are now willing to have the courage to right the horrible mistake that they made. This was a grave miscarriage of justice that the American people fully understood, and it is everybody’s hope that it is about to be corrected.” The chant from Trump’s crowd yesterday: “Lock Her Up!”
Below are eighteen questions on the subject of the campaign, the email investigation, and the actions taken by Comey and the FBI, along with our views as to the answers.
Full disclosure: We know Director Comey personally and one of us has worked with him in prior government service. Of course, we are writing this on our own behalf, not his, and stating only our own views of these matters.
We are also writing it based on the information we have as of 2:30 pm on Saturday afternoon. Our views may change as further facts emerge.
1) What was Comey’s original non-prosecution decision this summer?
On July 5, Comey held a press conference concerning “the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.” Comey stated that “[a]fter a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision.”
Comey also announced the FBI’s prosecution recommendation to the Department of Justice. He acknowledged that Hillary Clinton and her State Department colleagues had been “extremely careless in their handling of very sensitive, highly classified information.” But he concluded that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
He further explained:
Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
2) What was the impact of Comey’s recommendation?
As Comey acknowledged in his press conference, the final call about prosecution rests with the Attorney General. But as a practical matter, Comey’s decision put an end to the issue. It is inconceivable that an Attorney General would go forward with a prosecution in such a high-profile case after the FBI Director, after a thorough investigation, publicly concluded that such a prosecution would be unreasonable.
And indeed, within a week, Attorney General Lynch announced that the Department would not prosecute anyone in the matter.
3) Was Comey’s recommendation of non-prosecution reasonable?
There is much debate in this question, but in our view, and without getting too much into the weeds, the answer is that Comey’s judgment was reasonable.
Comey acknowledged “there is evidence of potential violations of the statutes regarding the handling of classified information.” But as he also noted, correctly, that prosecutors weigh a “number of factors before bringing charges,” including “the strength of the evidence, especially regarding intent,” as well “the context of a person’s actions, and how similar situations have been handled in the past.”
One of us previously explained and defended Comey’s decision as follows:
Some argue that prosecution was warranted because not all of the relevant laws require intent (an important potentially applicable one, 18 USC 793(f), requires only “gross negligence”), and because the government needs to send a strong signal to protect the integrity of the classified information system. I do not view this as an unreasonable position, at least based on the information Comey provided yesterday. On the other hand, there are many hurdles to a successful prosecution even assuming the “gross negligence” standard is the right one here.
The prosecution would be entirely novel, and would turn in part on very tricky questions about how email exchanges fit into language written with physical removal of classified information in mind. Though he did not say so explicitly, Comey might have concluded that a conviction in this context was, for many reasons, unlikely—a clear reason not to prosecute. He probably also considered broader public policy considerations that prosecutors often take into account—considerations that cut in many different directions, to be sure. It’s unclear whether Comey was right to say that “no reasonable prosecutor” would bring a case against Clinton—it is just hard to say, one way or another, based on the information he provided yesterday. But Comey explained the general basis for his decision and took full responsibility for it.
Another of us described it as follows:
[I]t's very clearly not the sort of thing the Justice Department prosecutes either. For the last several months, people have been asking me what I thought the chances of an indictment were. I have said each time that there is no chance without evidence of bad faith action of some kind. People simply don't get indicted for accidental, non-malicious mishandling of classified material. I have followed leak cases for a very long time, both at the Washington Post and since starting Lawfare. I have never seen a criminal matter proceed without even an allegation of something more than mere mishandling of senstive information. Hillary Clinton is not above the law, but to indict her on these facts, she'd have to be significantly below the law.
Comey's recommendation in this regard is unambiguous: "our judgment is that no reasonable prosecutor would bring such a case."
His reasoning, at least in my judgment, is clearly correct.
These analyses are different, but they both point in the same direction: Comey’s judgment was, if not obviously correct, certainly reasonable.
4) Was it unusual for Comey to announce his recommendation in public and explain his rationale?
5) Why did he do it, and was he justified in doing it?
Comey answered this question in part in his press conference. He stated at the outset that Justice Department and the rest of the government “do not know what I am about to say.” And he later explained: “In this case, given the importance of the matter, I think unusual transparency is in order.”
There were surely other reasons for Comey’s “unusual transparency” that he did not mention. Primarily, the public perceptions that the independent judgment of Comey’s superiors, the President and the Attorney General, was tainted on the matter.
In October 2015, President Obama stated that Clinton's personal email server “is not a situation in which America’s national security was endangered,” and the following April, a few months before Comey’s press conference, Obama said of the Clinton email controversy that Clinton “would never intentionally put America in any kind of jeopardy.” Both of these statements gave the appearance to many observers that the President had prejudged legally relevant aspects of the investigation. And, of course, Clinton is also the nominee of the President’s own party.
To make matters worse, Attorney General Lynch was compromised not just by these statements by the President, but much more so by Bill Clinton’s controversial private visit on her airplane on the Phoenix tarmac; by the Clinton camp floating the possibility, a few weeks before Comey’s press conference, that she would consider keeping Lynch as her Attorney General; and by Lynch’s own unclear statements the weekend before Comey’s press conference about her role in the final decision to prosecute.
In short, Comey’s superiors were compromised in a fashion that threatened to taint the investigative conclusions, including his independent recommendation not to prosecute. This taint around the Clinton investigation was the original set of factors that hemmed Comey in from the beginning.
In this highly unusual circumstance—a circumstance made more unusual by the fact that the central focus of the investigation was the Democratic nominee for the presidency—we believe Comey was justified in announcing his recommendation and reasons for non-prosecution in public. Comey’s unusual action was the least bad option he had for preserving the integrity and independence of his investigation and recommendation. As one of us wrote at the time, if Comey had simply offered his recommendation to Lynch in private,
the ultimate judgment not to prosecute would be mired in much thicker political muck than the inevitable muck it is now in. By making his final recommendations known to the public before telling the Attorney General, and by issuing a devastating critique of Clinton’s behavior even as he was recommending non-prosecution, Comey sent a signal of maximum FBI independence that at the same time lessened the sting of the many potential conflicts of interest lurking outside the FBI even as it placed much more responsibility (and criticism) for the decision on him.
Comey took on unusual responsibility and criticism for the non-prosecution decision “in exchange for attenuating the conflict of interest charges that would have swirled much more violently if he had not publicly announced his views in advance of the Justice Department’s ultimate decision.”
That was a reasonable trade under the circumstances.
6) Was Comey shilling for Clinton when he made his non-prosecution decision?
No. Comey’s call here certainly infuriated a lot of conservatives. Rudy Giuliani called it “mind boggling,” suggesting that Comey put “himself and Mrs. Clinton above the law.” And within a few days of Comey’s announcement, Rush Limbaugh wasted no time before speculating about coordination between Obama, Comey and the Clinton campaign.
But there is no reason to doubt that Comey made his call on the merits as he saw them.
For one thing, Comey in his press conference was very critical of the behavior of Clinton and her team, which he described as “extremely careless in their handling of very sensitive, highly classified information.” Comey also stated that “in similar circumstances” to Clinton’s, “individuals are often subject to security or administrative sanctions.” Here Comey was claiming that Clinton’s behavior would normally result in demotion, firing, or disqualification to receive classified information—a very serious charge against a possible future President and boss, and not one a shill would make.
Also, Comey’s recommendation reflected the unanimous judgment of the career investigative team.
And what’s more, a redacted version of the FBI’s memorandum of its interview with Clinton is now public. Comey has publicly explained his team’s process and reasons for decision. There is no basis whatsoever to question the integrity of the FBI’s decisionmaking and investigation, and Trump and congressional Republicans have been reckless in suggesting otherwise.
7) Was Comey shilling for Republicans when he critically described Clinton’s conduct?
Obviously not. It was highly unusual for Comey to describe Clinton’s behavior in the critical terms described above. But at least as far as the decision and initial press conference are concerned, we believe that, in this highly unusual circumstance, Comey’s decision was defensible. The need to make clear, with compromised judgment all around him, that he was not minimizing the gravity of the situation and that his investigation and judgment were independent was a compelling one.
8) Was it right for Comey subsequently testify before Congress about his decision?
This is a more complicated question, and one on which Comey’s approach seems to us more open to question. Back in July, one of us wrote the following:
I think it's important to stress that this is really not the way we want major investigations to be closed out in the future.
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. There is something even more horrible about a hearing in which individual members of Congress feel entitled to pick over the details of that conduct, asking about whether specific questions were asked by the FBI of specific witnesses and subjects and asking whether specific lines of inquiry were followed.
As a general matter, when prosecutors and investigators decline to indict someone, we don't want a report, much less congressional oversight of the unindicted conduct. We want them to shut the heck up.
This point is rooted in important civil liberties concerns. We don't give the FBI the power to investigate people so that it can report on their characters or behavior, so that the FBI director can pronounce on the truthfulness of their public utterances (which Comey endeavored not to do and yet inevitably did repeatedly simply by reporting his findings). And we don't give congressional committees the power of oversight, generally speaking, so that they can review individual prosecutorial decisions by flyspecking the details of the conduct of particular investigations vis a vis individual subjects. We give the FBI these powers so that it can investigate crimes. And if the Justice Department is not going to prosecute someone, it generally has no business talking about the conduct of that person's affairs.
In retrospect, Comey probably erred in testifying about his decision. In his initial public statement, he had total control over what he said. In his subsequent live testimony, however, members drew a great deal more out of him. It was a mistake to let them do so.
9) Should Comey have publicly released so many documents about the investigation?
Comey compounded that mistake, in our view, by allowing so many of the underlying documents in the investigation to become public. Perhaps some of those documents, such as the redacted version of the FBI’s recommendation memo, should have been released. But the flood of material about Clinton and her emails created an expectation that everything the FBI did would be discussed in public. That expectation proved fateful this week when Comey felt obliged to bring Congress and the public up to speed on changed circumstances from when he testified under oath.
10) What is the relationship between the Anthony Weiner sexting investigation and the email investigation?
The answer to this question is not entirely clear, but based on press reports, it appears that the FBI—in the course of investigating allegations of Weiner’s exchanging sexually explicit messages with a minor—seized some electronic devices of his that also contained emails belonging to his estranged wife, longtime Clinton aide Huma Abedin. These new emails, for one reason or another, complicate the conclusions of the preexisting email investigation, if only by adding a great deal of new material that has to be processed. So on Thursday, Comey authorized a review of these materials to determine whether they are relevant to the email investigation, whether they are merely duplicates of previously reviewed emails, and whether anything in them is classified.
11) What did Comey do or say yesterday?
Comey yesterday informed Congress in his letter that he had taken this step. His rationale for the letter was that he had previously testified that the matter was “completed” but that he had now authorized additional “appropriate investigative steps” to “review” these new emails. He added that he could not assess yet whether the material was “significant” but said the emails “appear to be pertinent” to the investigation.
In a subsequent email to FBI staff, he amplified a bit:
Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood…
12) Is Comey a political hack shilling for Trump?
Certainly not. Just as it was inappropriate for Trump and many Republicans to accuse the FBI of corruption for not recommending that the Justice Department bring a case in July, the suggestion today that Comey is motivated by a desire to help a political candidate is silly. To the contrary, Comey’s motivation is almost certainly to avoid helping a candidate.
We think it obvious that Comey had to authorize additional investigation after learning about the Weiner emails. Whether he should have done so before the election or announced that the fact of doing so publicly before the election, and whether he should have done so the way he did, are different questions.
On the public announcement, Comey was driven by at least two imperatives. The first and stated imperative was to correct his prior testimony about the investigation being completed in light of the the new information in the Weiner emails. A second and unstated imperative was almost certainly to avoid the controversy and taint that would have swirled if he had not disclosed the Weiner information and it had leaked out before the election or become public after the election. This second imperative is a matter of protecting the integrity and public trust of the institution he heads, the FBI.
As former acting director and deputy director of the CIA John McLaughlin noted today, “if the FBI took time to make that determination and said nothing publicly until after the election, it would be accused of playing politics—the worst charge you can level against organizations like the FBI or CIA.” Putting the point another way, the Weiner email connection to Clinton was necessarily going to have an impact on the election—either before the election, through Comey’s statement or a leak, or after the election, when the information came out and would certainly cause many to believe that the government had held back information relevant to the election.
Far more questionable was the way Comey made the announcement. On its face the letter to Congress made no criticism of Clinton and did not suggest that any new evidence pointed to wrongdoing. But as the internal FBI letter made plain, Comey was well aware that the letter, coming less than two week before the election, would spark controversy. He attempted to minimize that by being as concise as possible, but the vagueness may have instead made the speculation worse. If he did not “want to create a misleading impression,” Comey could have taken greater steps in his letter to Congress to explain that he did not want to create a misimpression and to make clear the unreviewed nature of the new information.
We surmise that Comey did not say more because he did not want to prejudge what he might find in the emails. As McLaughlin correctly noted, "email-based investigations are notoriously difficult and unpredictable ... because of the way email travels and bounces among recipients, with relevant messages often buried in correspondence between or among people not directly involved but possibly cc’d for some unrelated reason. Unlike written correspondence, email chains often form a labyrinth that is difficult to map. It’s hard to get to the bottom."
Still, we believe that Comey could have predicted the dramatic reaction to his letter and taken better steps to preempt that reaction. It is very hard to say precisely what Comey should have said because we do not know what he knows about the extent to which the new information affects Clinton. It is possible, based on his knowledge, that he could not have said much more without being misleading. But it is also possible that he could have written a better letter—more like the internal letter, which predictably leaked out—in order to have a less dramatic impact on the election.
But while we are in this sense critical of Comey’s letter, two points warrant emphasis: The Weiner emails would necessarily impact the election, either before or after November 8; and there is zero reason to think that Comey did this in order to injure Clinton’s electoral chances or to advantage Trump in his candidacy against her. It is plausible, even likely, that had Comey not made some kind of statement, the information would have leaked in a manner far more harmful to Clinton.
13) Did Comey reopen the email investigation?
Not really. For one thing, while Comey described the investigation as “completed,” it appears that the FBI never formally closed it.
Moreover, the language Comey used in his letter suggests something less than a full reinvigoration of the investigation. He described what he had authorized as “review” of the new emails. This suggests something more like a preliminary inquiry to figure out what, if any, aspects of the earlier investigative conclusions might require revisiting.
The best way to understand what Comey authorized is to imagine that a large dumptruck full of possibly relevant material unloaded itself in front of the Hoover Building. So Comey authorized agents to go through the pile and figure out whether it has implications for what they determined last summer.
14) Does the letter mean the FBI has found something explosive and seriously incriminating about Clinton?
No. A lot of commentators, particularly on the conservative side, are assuming that these emails must contain something really big for Comey to have acted as he did. We think that misreads the situation.
The more likely scenario, in our view, is that Comey’s actions simply reflect the volume of new material and the consequent uncertainty as to what it might mean. The New York Times reports, citing a senior law enforcement official, that we are dealing with tens of thousands of emails. That means the Bureau will have to figure out how many are duplicative of emails they’ve already looked at, how many are potentially relevant to an investigation limited to the mishandling of classified information, and whether any at all contain classified information. And as noted above, email investigations are extremely complex.
15) Did Comey breach law enforcement norms by sending yesterday’s letter?
For starters, the Justice Department is very cautious about taking major actions in politically loaded cases in the immediate run-up to an election and has policies expressly limiting this kind of activity. This caution exists because our political culture doesn’t want the FBI to influence elections by opening or conducting investigations in a fashion prejudicial to one of the candidates. A 2012 memorandum from Attorney General Eric Holder to all Justice Department employees articulating this policy says that “If you are faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election, please contact the Public Integrity Section of the Criminal Division for further guidance.” While the Public Integrity Section declined to comment on whether Comey followed these guidelines, common sense suggests that Comey, by consulting with Deputy Attorney General Sally Yates and the attorney general herself, did something more than consult with Public Integrity. And it’s not clear that the steps he has taken (authorizing a review of emails) count as “overt investigative steps” anyway, though the letter to Congress might.
That said, this is a case in point of why this policy exists.
Here Comey opened a new set of questions about one of the major party candidates with 11 days to go in the campaign—questions he has all but said he can’t answer yet. Doing so offers an open-ended opportunity for Clinton’s opponents to make inferences about her conduct. And Trump has done exactly that, saying yesterday “they are reopening the case into her criminal and illegal conduct that threatens the security of the United States of America. Hillary Clinton’s corruption is on a scale that we have never seen before.”
More generally, as discussed above, Comey’s willingness to talk about his investigative findings is itself atypical—and generally frowned upon.
Notably, the attorney general and Yates appear to have cautioned against what Comey did. Prior to his announcement, the attorney general allegedly “expressed her preference” that Comey follow the Department of Justice’s practice, described above, and not comment. Despite her advice, at least one administration official has said that Comey felt “obliged” to inform Congress because he had promised to do so if there were developments in the case.
In a blistering Washington Post op-ed, former DOJ spokesman Matthew Miller goes after Comey for the sequence of public statements and disclosures that culminated in yesterday’s letter:
Comey’s original sin came in July, when he held a high-profile news conference to announce his recommendation that the Justice Department bring no charges against Hillary Clinton. In doing so, Comey violated Justice rules about discussing ongoing cases and, as I argued at the time, made assertions that exceeded FBI authority, recklessly speculated about matters for which there was no evidence, and upended the consultative process that should exist between investigators and prosecutors.
Comey argued that his news conference was necessary in a case of intense public interest, but as his actions in the months since have shown, the precedent he set has led only to increasingly problematic outcomes.
First, because Comey had already publicly discussed the investigation, he felt free to answer detailed questions about it before a congressional panel two days later. Comey’s description of not just the FBI’s legal reasoning but also the underlying facts of the case only provided more ammunition to critics on both sides. Notably, when Comey’s titular boss, Attorney General Loretta E. Lynch, appeared before a congressional panel later that month, she declined to follow his lead, citing Justice practices prohibiting her from doing so.
Then Comey decided to turn over the FBI’s investigative file to Congress, refusing to even consult with the State Department over what information should be redacted. When that wasn’t enough to satisfy critics, he publicly released the information in dribs and drabs that fueled repeated news cycles in the midst of the campaign.
With each step, Comey moved further away from department guidelines and precedents, culminating in Friday’s letter to Congress. This letter not only violated Justice rules on commenting on ongoing investigations but also flew in the face of years of precedent about how to handle sensitive cases as Election Day nears.
Miller is being unduly harsh here, but he’s not wrong that Comey is on a slippery slope of sorts, in which each disclosure necessitates the next disclosure and draws the FBI further and further away from Justice Department norms designed to keep law enforcement out of election campaigns.
Having said all that, it’s not clear what realistic alternative Comey might have had. Imagine for a moment that the Bureau had sat on this until after the election and it then emerged that (a) the FBI had additional emails, (b) that Comey knew it had additional emails, (c) that having testified that the investigation was completed he (d) he did not authorize additional review or he did so but did not notify Congress that his earlier statements had proven incorrect. It would be a major major scandal, particularly if one or more of those emails fundamentally undermined his earlier investigative judgments.
16) Should Comey, having said what he said yesterday, now say more?
The Clinton forces are calling on the FBI to immediately release “the full details of what he is now examining.” This almost certainly cannot happen, both for investigative reasons and for reasons related to the privacy rights of the presumably inordinate number of third parties who were likely exchanging emails with Abedin. Unlike the Russian government, the FBI does not just do document dumps of people’s emails.
That said, if there is more that Comey can say, he should probably do so—even at the risk of sliding further down the slippery slope he is on. Specifically, assuming the following statements are true, it would be worth Comey’s saying them publicly:
The FBI has come into possession of a large trove of additional emails that have to be reviewed. To say that something has to be reviewed does not mean it contains anything implicating anyone of anything. It means only that the material has to be reviewed.
As I stated in my original letter, the reason I sent the letter was to inform Congress of a development that required me to revise my statement to Congress about the investigation’s being complete.
Nobody should draw any conclusions about anyone’s conduct based on the fact that the FBI is reviewing these emails.
Nobody should draw the conclusion that anyone sent or received additional classified material or that any material undermines the FBI’s prior investigative conclusions based on the fact that the FBI is reviewing these emails.
The fact that the FBI is reviewing new emails means only that the FBI is reviewing new emails, nothing more.
17) Does this episode show that the FBI is political?
Whatever else you think of Comey’s judgment—and we are critical of some aspects of his handling of this matter—it is impossible to conclude from the course of events since July that he was motivated to help one side or to influence the election.
This is apparent in the head-snapping judgments from both sides about his integrity, a matter captured amusingly in this tweet by Fourth Amendment scholar Orin Kerr:
Interesting to see Comey transformed from a pro-Clinton hack to an anti-Clinton hack with just one letter.— Orin Kerr (@OrinKerr) October 29, 2016
Comey has throughout appeared motivated by the desire, in the face of many appearances of conflicts of interest by his superiors, to ensure that his investigation cannot be viewed as tainted. Comey may not in, the difficult circumstances he found himself in, have executed that imperative with perfect judgment, a judgment that has upset different people at various times. His failure to keep the Bureau out of the election cycle is rooted not in politics, but in a desire to be transparent and open and not let anyone say he failed to ventilate matters before voters went to the polls.
18) Should Hillary Clinton be happy or angry about what Comey did?
That depends on the outcome of the election.
If Clinton wins, Comey’s controversial pre-election step will have saved her from the charge that the election was tainted because the FBI did not reveal the Weiner letters before the election. If she becomes president, and regardless of whether the Weiner emails prove embarrassing to her or worse, she should be grateful for the pain now, for it will have precluded a lot more pain later.
If Clinton loses, she will obviously, and probably correctly, blame Comey. And, justifiably or not, he will have a great deal to answer for. For this reason, we suspect (though we certainly don’t know) that Comey may be secretly rooting for Clinton to win, even though such a victory will certainly lead to many awkward moments as he continues to serve as FBI Director and continues the investigation of his new boss.