Deeply Disturbing

FBI Director James Comey testifies under oath before the House Oversight Committee to explain his agency's recommendation to not prosecute Hillary Clinton, now the Democratic presidential candidate, over her private email setup during her time as secretary of state, on Capitol Hill in Washington, Thursday, July 7, 2016. (AP Photo/J. Scott Applewhite)
J. Scott Applewhite/AP
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James Comey’s decision to send his letter to Capitol Hill seemed like a bad one from the start. But it did not seem as egregious at first as it does now because many assumed he faced a tough balancing act between informing Congress of significant new evidence and following longstanding DOJ/FBI guidelines about avoiding potential election interference. Even faced with that dilemma, he could have provided more information than a terse letter certain to drive wild speculation. But everything we’ve learned over the last 48 hours-plus suggests Comey had no basis to believe there was significant new evidence, indeed no clear reason to think there was anything new at all. At best, Comey combined extremely poor judgment with a decision to place a near-absolute priority on protecting himself from criticism over carrying out his professional and ethical obligations.

It is quite telling that even at this late stage in the election, when partisan tempers are naturally running at their fiercest, former career DOJ lawyers, former high level DOJ appointees and legal experts on both sides of the aisle are lining up to say this was an extremely poor decision and may even have violated the law. (Note here: President George W. Bush’s top ethics lawyer suggests Comey may even have broken the law. Another example here.) As far as I can see, no one who actually understands Comey’s legal, professional and ethical responsibilities can find a basis to defend his actions. Even Republicans who might be inclined to interpret ambiguous facts through a partisan prism don’t seem able to come up with one.

I’ve said a number of times that I do not believe Comey acted out of a desire to interfere with the outcome of the election. I still believe that. But I’m not sure it matters. What seems inescapable is that Comey has made avoiding criticism from Republicans (and leaks by FBI agents that would generate such criticism) his top — almost his sole priority. That being the case, his intent seems all but irrelevant. It amounts to some professional equivalent of reckless disregard, perhaps with a smattering of largely irrelevant naïveté thrown in.

It is important to return to why these rules about law enforcement and non-interference in elections are in place in the first place. These rules are in place to prevent precisely the kind of situation we are now in: a potentially highly damaging blowup on the eve of an election. Those rules are there to prevent this from happening when nothing has in fact been proven or is even likely to be proven. But that is not even the situation here. In this case, there seems to be no basis at all — just the existence of other emails from Huma Abedin, which may even be duplicates of ones already investigated.

I may not be convinced of malice on Comey’s part. But it seems extremely likely — indeed, we all but know it — based on information surfaced over the last forty-eight hours — that he is being played by people who are acting with malice. Or, perhaps more damning, he is unwilling to do the right thing because it could lead to criticism from Republicans. I’ve said it several times: self-protection seems to be governing his actions.

This is not some abstract concept of ‘doing the right thing.’ It is doing what he is specifically instructed to do in this case (by longstanding DOJ/FBI guidelines) and and what he should practice in order to avoid recklessly interfering with national elections.

Still more troubling is the information contained in this just-released article in The Wall Street Journal by Devlin Barrett. It describes a feud over the Clinton probe within the FBI, as well as between the FBI and the Department of Justice. It now seems clear that what are essentially rogue FBI agents have been looking for all sorts of different angles to pursue investigations into Hillary Clinton and her family. Indeed, they’ve presented their evidence to career public corruption prosecutors at DOJ and have been told they don’t have anything. But it hasn’t stopped. They clearly were not happy with the decision in the emails probe, even though Comey said it was not even a close call.

This seems to be the backstory of what happened on Friday. Agents pushed for more aggressive investigations on various fronts. Comey feared he’d be blamed after the fact for not notifying Congress, and he was specifically afraid that some of these agents would leak news of the (possibly) new Huma Abedin emails to Congress. These are not fun situations to be in, I am sure. But they are ones an FBI Director should — indeed must — be willing to stand up to.

Here’s something to look at very closely. Last week we heard this story of how the Bureau’s now-second in command, Andrew McCabe, might have been unduly influenced because Virginia Gov. Terry McAuliffe (D) contributed substantial sums to McCabe’s wife’s failed state senate campaign. Virginia Democrats were seeking to reclaim control of the Virginia state senate. I won’t rehearse the details of that article. But the dates and the logic of the argument simply don’t hold up. The author of that article was the WSJ’s Devlin Barrett, the same reporter who wrote the article I previously mentioned about agents at war with their superiors at the FBI.

It is quite clear those agents have Barrett’s ear. Indeed, it seems extraordinarily likely that that article about McAuliffe’s campaign donation was an effort to push the Clinton emails story back into the campaign spotlight, indeed to discredit the decision made in July to close the case.

Harry Reid is now out with extreme criticism of Comey and accusations that the FBI has information about Donald Trump and his connections with Russia. I noted a few weeks ago what is so damaging when people start violating norms and interfering in elections: it starts to seem rational for others to do it as well. I will suffice it to say that there appear to be at least two ongoing investigations into issues related to Donald Trump. Comey has felt no need to proceed with what we might call the extreme transparency he has chosen with the emails probe of Hillary Clinton. Again, he’s driven by fear of Republican criticism and leaks by agents trying to strong-arm superiors.

All of this — the initial action and now these reactions — are precisely what these rules are meant to prevent. It might be better to say that they are meant to avoid developments in good faith-investigations being made public in close proximity to elections. What you have here looks more like a worst case scenario: rogue agents trying to rehash closed investigations or launch new probes in time to affect the election, whuch is only days away.

It is no secret that the the rank-and-file members of the FBI lean Republican, and much of the same can be said about law enforcement generally. There’s no crime in that. But someone in Comey’s position is charged with the pursuance of justice and administration of justice free from partisan motivation and in line with the policies and norms that govern them. He’s failed in that completely, even after being warned about the consequences of his actions. His intent, the mix of self-protection or naiveté or even bad motive, if it exists, is basically irrelevant.

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Josh Marshall is editor and publisher of TalkingPointsMemo.com.
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