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Pre-Election Disclosures: How Does, and Should, DOJ Analyze Edge Cases?

Jane Chong
Tuesday, November 8, 2016, 9:10 AM

Two days ago, Hillary Clinton was formally cleared, again, of the specter of criminal wrongdoing in the FBI’s email investigation. The only cloud left is the one history is deciding whether to permanently affix over FBI Director James Comey.

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Two days ago, Hillary Clinton was formally cleared, again, of the specter of criminal wrongdoing in the FBI’s email investigation. The only cloud left is the one history is deciding whether to permanently affix over FBI Director James Comey.

A fitting capstone to a baffling election season, the partisan hysteria of the last two weeks managed to be as formless and empty as it was loud. Conspicuously little was said about how DOJ does or should tackle the issue of sensitive pre-election investigation-related disclosures, outside the blanket claim that it doesn’t make them 60 days before voters take to the polls. So with no sand left in the hourglass, let’s explore.

Four years ago, then Attorney General Eric Holder came under fire for his part in a very different kind of classified-documents saga: Holder kept the FBI’s discovery of then CIA Director David Petraeus’s extramarital affair and improper communications with Paula Broadwell secret from Congress, the White House, and the Director of National Intelligence until the evening of and day after the 2012 presidential election.

Republicans cried foul, as did some high-profile Democrats, albeit less enthusiastically. Lawmakers and commentators seized on the possible national security implications of the affair, some launching a torrent of conspiracy theories about a political cover-up and connections to Benghazi. On the more prosaic side, observers pointed out the delayed disclosure not only prevented embarrassment to the White House but also prevented the fallout from distracting the public from some of President Obama’s major talking points in the run-up to the election (like his much-praised response to Superstorm Sandy).

In short, during the last election, Holder was faced with some variation of the dilemma recently imposed on James Comey: a choice between transparency and political sensitivity (or, through the muddy lens of politics, a choice between accusations of pre-election opacity and accusations of undue election influence). Unlike Comey, Holder opted against pre-election disclosure—a decision he defended on DOJ policy grounds entirely consistent with his recent criticism of Comey—but he did so to considerable consternation and conjecture.

My intention is not to equate the two investigations or to reiterate the idea that Comey was in a lose-lose situation. It is simply that in the run-up to a presidential election, the line between transparency and undue influence is murkier than recent press coverage would have us believe. The 2012 incident better illustrates the murk than the case at hand, given the actual (as opposed to hypothetical) progression of the Petraeus investigation, and particularly given the oppressive cloud that the September 2012 Benghazi attack cast over Washington. These factors make it difficult to believe that Holder and his subordinates did not carefully analyze the pros and cons of pre-election congressional notification or public disclosure, before ultimately deciding against it—and impossible to believe that the DOJ policy apparatus leaves no room for such consideration.

Consider, too, the confined language of the March 2012 memorandum that Holder circulated to all DOJ employees during his tenure as AG, and which Holder cited in his Washington Post op-ed to support the assertion that Comey had violated department rules and norms. This memorandum reflects the limitations of the Hatch Act itself: it proscribes acting with improper “purpose” to influence an election and in engaging in certain discrete partisan activities like receiving political contributions. It has little direct application here, where there is no evidence indicating that Comey acted with any improper purpose. Whether Comey failed the famously fraught appearance-of-impropriety standard is a closer question, but of little actionable import where the judgment call at issue could have reflected badly on the department’s impartiality either way.

In short, you can strongly disagree with Comey’s decision to issue his first letter, as I do, without denying there must exist some zone of discretion when it comes to good-faith DOJ pre-election disclosures about ongoing investigations. The alternative is absurd.

I understand the impulse to wave aside this point—or to argue that the zone is a really narrow one. History makes this dismissal easy; critics are correct in describing Comey’s disclosure as an unprecedented departure from FBI and DOJ practice in the post-J. Edgar Hoover era. And they are right notwithstanding any misleading comparisons to distinguishable cases: for example, the decision of Lawrence Walsh, the independent prosecutor leading the Iran-contra investigation, to file a grand jury re-indictment against Caspar Weinberger four days before Bill Clinton faced off with George H.W. Bush in the 1992 presidential election; or the Alaska state legislature’s vote to release, three weeks before the 2008 presidential election, the Troopergate report concluding that Republican vice-presidential candidate Sarah Palin had unlawfully abused her power as governor to secure the firing of her state trooper brother-in-law.

But precedent is not dispositive. Indeed, Comey’s critics are generally careful not to explicitly deny this—notice Holder’s description of “long-standing Justice Department policies and tradition,” and Jeffrey Toobin’s references to the DOJ “rule" and “custom.”

So accepting that there is some margin for consideration of case-specific circumstances, what framework or considerations should have guided Comey in determining whether the circumstances in this case reasonably called for an exceptional disclosure?

Some thoughts on the logical soft factors, which are being floated in the press only in piecemeal fashion:

  • Substantiality. The insubstantiality of the information contained in Comey’s letter, so out of proportion with the sensation it was likely to cause, obviously weighed strongly against disclosure to Congress. In fact, a reasonable argument could be made that—given how far the Petraeus investigation had progressed in the months prior to the 2012 election and how little information Comey had when he issued his letter to Congress mere days before this election—both Holder and Comey made the wrong decision: Holder pushed too hard in favor of election sensitivity, while Comey went too far in favor of transparency.

  • Attenuation. One could easily argue that the above assessment is too reductionist and that other relevant factors support both Holder’s refusal and Comey’s willingness to risk jumping the gun. Perhaps most significantly, the Petraeus affair plainly had nothing to do with President Obama’s personal conduct, leaving more room for error in sacrificing transparency and avoiding pre-election disruption. In contrast, the never-ending email saga at issue in this election directly involved a major party presidential candidate, arguably leaving a smaller margin.

  • Leak threat. As many news reports have noted, Comey may have done as did to head off the more damaging effect of leaks, a pragmatic factor weighing in favor of Comey’s decision. Providing some insight into just how out of hand Bureau leaks have gotten, last Thursday, the Guardian came out with this disturbing story describing the FBI as a festering hole of anti-Clinton sentiment; it’s “Trumplandia,” declared one unnamed agent. Although the Guardian casts Comey’s letter to Congress as just another piece of the Trumplandia puzzle, it should be clear that the alleged discontent within the Bureau just as easily vindicates Comey’s choice to disclose. If we’re inclined to think that formal DOJ/FBI decisions should not turn on internal agency hijinks—in President Obama’s aspirational words last Wednesday, “We don’t operate on leaks”—then the threat of leaks should constitute a second-order concern. But the point is we cannot simply compare Comey’s disclosure to the idealized alternative—uncompromised silence from the agency. To avoid falling into the cognitive trap that Philip Bobbitt once dubbed Parmenides’ Fallacy—downplaying the costs of inaction—we must consider the likelihood and magnitude of damage leaks could have wrought had Comey chosen nondisclosure.

  • Press distortion. Like leaks, the press is its own distortion vector, all the more extreme in an age where retweeting is considered by some a substitute for reporting. Comey chose to offer what he had to the devil he knew, and it seems he vastly underestimated the damage that would result. The press did a spectacularly poor job sticking to the facts here, creating a headache on a scale beyond what Comey presumably imagined.

  • Congressional distortion. Then again, there was nothing unexpected about the helping hand the press received from Rep. Jason Chaffetz (R-Utah), one of eight congressional committee chairmen to whom Comey’s letter was directly addressed and whose gleeful, poorly worded tweet about Comey’s letter got the distortion snowball rolling in minutes. Ever since the FBI first cleared Clinton, Chaffetz, a House Oversight Committee member, has been waging an obsessive partisan media war against not just Clinton but also the FBI; two days before Comey issued his Oct. 28 letter, Chaffetz actually promised to spend “years” probing Clinton’s record from her years in the State Department. In some cases, there may be some room for the FBI to wonder exactly how congressional leaders will behave on receiving distortable information. This was not one of them.

  • Timing. How far out is the election? This is clearly an independently critical factor when it comes to presenting the public with new information, as suggested by the DOJ’s self-imposed 60-day rule of thumb for staying mum. The closer we get to an election, the more problematic a politically fraught disclosure gets, as it affects a campaign’s ability to respond and the electorate’s ability to get properly acquainted with the available facts. But the matter of timing also interacts with all of the above factors; for example, more time before the election equals more time for leaks.

What is the purpose of going through this common-sense exercise? Note what I just sketched out: these are six starting examples of concrete parameters we can use to assess the reasonableness of an executive branch official’s decision to disclose investigation-related information of (1) uncertain content or significance but (2) clear political consequence in the days or months before a presidential election. Presumably, the DOJ already considers these and other factors in “edge” cases where unusual circumstances make it necessary to at least consider making a rare investigation-related disclosure. It’s nothing more than a rudimentary analysis of the risk associated with pre-election disclosure (undue impact on the presidential election), weighed against the responsibility of such disclosure (keeping voters informed with what, at least from behind a veil of ignorance, they would see as relevant to their Election Day decision-making).

Perhaps a similar reasonableness rubric, not recriminations, can serve as the touchstone for our next public debate about the timing of sensitive election-related disclosures.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

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