Indeed, I take Michele Gorman's and Matt Cooper's point outlined here in Newsweek that Comey had little choice but to update the GOP chairs on the testimony he gave in July, as he did in today's letter. Because even if the substance of the investigation hasn't changed, it does seem clear that new information (additional emails) made his July testimony no longer correct and complete. In other words, Comey swore under oath to provide truthful and complete testimony in July. New information made that testimony incomplete. For his testimony to remain truthful and complete, he had to update his testimony, as he did. This doesn't get into the political dimension: charges of politicization if he did not provide this update until after the election had been decided.
That's not an easy situation.
Still, it is important to be clear that not just this letter today but the July comments are basically without precedent. A few moments ago there was a law professor on MSNBC discussing Comey's role. His point was that today's letter was not out of character for how Comey has approached this case. It's quite consistent actually. But how he's handled the entirety of the case is totally out of the norm. There is lots of DOJ and FBI guidance about having a very high bar for any announcements near elections when they touch on candidates.
Let's review what we appear to know, based on news that has come out since the initial report at about 1 p.m. ET this afternoon. In the course of the FBI's investigation into Anthony Wiener's alleged sexting with a 15-year-old girl, the FBI seized a device (apparently a computer). That computer was used by both Weiner and his estranged wife Huma Abedin. Abedin is not only a top Clinton aide. Her email was also on the same private server that Clinton used. The FBI scrutinized tens of thousands of emails that had passed through Clinton's server looking for classified information. Now they have more emails in the same category. It makes sense for them to review these too.
None of this additional information is from public statements from FBI officials. It's from 'sources' who spoke to various journalists. Still, we seem to have a basic sense of what happened and why this means there are additional emails that must be reviewed.
I can see where Comey felt that he was obligated to update Chaffetz et al. And it was a given that once he did so they would release the information for maximum political effect. But Comey seems to be operating with a profound obliviousness to the political impact of his actions. Perhaps it's a willful obliviousness. I don't know. But that's not my read of the man.
If Comey had no choice but to provide the congressional chairs with this update to his testimony, he could have and I think should have gone about it quite differently. The email is quite cryptic. Law enforcement always wants to be circumspect and hedged. Indeed, it is the normal policy of the FBI not to discuss anything about an investigation unless there's an indictment. But in this case, Comey has made a totally open-ended statement which is open to a maximal interpretation even though the actual import seems to be quite a bit more minimal. Is Comey doing this because he's a Republican and wants Trump to win? Again, that's just not my read of the guy, though I could certainly be wrong.
But if you're going to depart so dramatically from normal procedure, you can't do it in some ways and not others. In this case, he owes the public and the country a clearer read about whether this new information is simply another batch of emails to review or whether this is a real reason to believe it may change the outcome of the investigation. Normally, no FBI director of prosecutor would get into anything like that. But again, not a normal situation.
From the first Comey has handled this like no other case remotely similar has ever been handled. His July statement and subsequent testimony may have made this letter inevitable. But the big picture has been a public litigation, shall we say, of an investigation which Comey said in July no reasonable prosecutor would have charged. Now what seems to have happened is that investigators found additional emails from the same private server which now need to be reviewed for classified material. For the reasons I noted in my earlier post, it does not seem likely that that will change the decision that was made in July. The quantity of emails that had whatever level of classified information was never the key factual question that drove the decision to recommend against prosecution. And yet, his way of announcing this has created a totally different impression.
I don't think Comey acted in bad faith. But in its totality, this has been very poorly handled. I understand his desire to operate with the greatest transparency possible. But this has been badly mishandled.