Comey’s Choice: Unprecedented Situation, Extraordinary Transparency

by Serina M. Vash 

FBI Director James Comey has come under intense scrutiny in the wake of his letter to Congress on October 28, 2016.  On its face, the October 28th letter (PDF: 517 KB) was intended to supplement the Director’s prior testimony before Congress, which detailed the FBI’s decision not to recommend criminal charges against former Secretary Hillary Clinton in connection with her use of a personal email server.   But the timing of the correspondence and its incomplete content led to harsh rebuke from both sides of the aisle, accusations by lawmakers that Director Comey violated the Hatch Act (PDF: 195 KB) and criticism by former DOJ prosecutors that the FBI Director broke from longstanding Department of Justice policy.

Federal law and DOJ policy are aimed at assuring that the work of federal employees is carried out with integrity and without regard to politics or political pressure. While criticism of the FBI Director’s decisions is unlikely to abate, a review of the record demonstrates that the FBI Director’s intent was to provide extraordinary transparency in what has been an unprecedented situation.

The Hatch Act and DOJ Policy

Enforced by the U.S. Office of Special Counsel, the Hatch Act of 1939 (PDF: 1,630 KB) is a civil statute designed to prohibit federal employees from engaging in political campaigning while on duty and from using their official positions to influence the outcome of elections.  In pertinent part, the Hatch Act provides that a federal employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election . . . .” 5 U.S.C. § 7323(a)(1) (PDF: 185 KB).  A violation of this provision requires finding intent to interfere with or affect the results of the election.

In addition to the Hatch Act, DOJ policy recognizes that actions taken close to an election can irrevocably impact election results.  Memorialized in March 2008 (PDF: 128 KB) and again in March 2012 (PDF: 397 KB), policy regarding “Election Year Sensitivities” warns restricted federal employees against taking investigative steps or commenting on an investigation that could influence the election process, especially as the election becomes imminent.

Understanding FBI Director Comey’s Intent

Understanding the Director’s actions and intent requires examining why Director Comey was so vocal on this matter in the first instance.  A review of the events that led to the October 28th letter doesn’t support finding that Director Comey violated the Hatch Act. Moreover, Director Comey’s October 28th letter does not stand alone in deviating from ordinary DOJ practice and policy.  Rather, a series of policy deviations led to the unusually vocal role of the FBI in the decision-making process, the FBI’s rare press conference on an investigation that yielded no charges, Director Comey’s testimony before Congress and, finally, the Director’s decision, on the eve of this presidential election, to supplement his testimony before Congress.

The AG’s Decision to Accept the Recommendations of the Investigative Team

As an initial matter, the investigation itself was of intense public interest and Department of Justice officials were sensitive to the issue of transparency.  When former President Bill Clinton unexpectedly boarded the plane of Attorney General Loretta Lynch in Phoenix, there had already been calls to appoint a special prosecutor in the investigation, to assure impartial decision-making.  Where even the appearance of impropriety was to be avoided, the fact of the meeting was problematic, irrespective of the conversation’s substance.

Known for her ethical rigor, the Attorney General frankly acknowledged that her meeting with Bill Clinton raised questions and concerns.  She acknowledged that while DOJ officials don’t typically talk about how decisions on cases are made, the circumstances of this case called for greater transparency in the decision-making process.  During a July 1st interview, the Attorney General publicly stated that, while she would not recuse herself, she intended to accept the recommendations of career prosecutors, the FBI and FBI Director James Comey, without dissent.  It was a decision the Attorney General said she had made before the impromptu meeting in Phoenix.

FBI Director Comey’s July 5th Press Conference

Following the Attorney General’s announcement, FBI Director James Comey in turn became unusually vocal about the process of the investigation, what the investigation revealed, the decision not to recommend criminal charges and the reasons for not pursuing criminal charges.

On July 5, 2016, FBI Director James Comey stood alone at a press conference detailing the FBI’s investigation into the email server to inform the American public about “what we did, what we found and what we are recommending to the Department of Justice.”  The Director noted the unusual posture of the FBI both in providing significant detail to the public and in holding the press conference without the Department of Justice knowing what the Director was going to say.

“In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence that the FBI helps collect.  Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate given the evidence,” he stated.  “In this case, given the importance of the matter, I think unusual transparency is in order.”

After detailing the comprehensiveness and the findings of the investigation, the Director concluded that, “although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.”

FBI Director Comey’s Congressional Testimony

Two days later, on July 7, 2016, Director Comey testified before the House Oversight and Government Reform Committee that the FBI’s investigation did not reveal sufficient evidence to support finding the necessary intent to pursue criminal charges. During the nearly five hours of testimony, Director Comey stated that his actions and statements concerning the investigation were an effort to offer “maximum,” “unusual,” and “extraordinary” transparency to the American people.  “This is an unprecedented situation,” he testified. “Transparency is the absolute best thing for me and for a democracy.”

On September 28, 2016, Director Comey was called to testify again, this time before the House Judiciary Committee. During the hearing, he defended the integrity of and the decisions made during the course of the FBI’s investigation.  Answering an additional four hours of questions, the FBI Director reiterated that agents were working for transparency, and promised that the FBI would look at any new and substantial information that was discovered.

A Consistent Decision

It was in the context of this remarkable series of events that FBI Director James Comey penned and sent his October 28, 2016 letter to Congress, less than two weeks before the election.

Much has transpired since the October 28th letter was written and sent.  The FBI swiftly completed a follow up investigation and informed Congress on November 6, 2016 (PDF: 403 KB) that their conclusions had not changed.  The November 8th presidential election has come and gone.

Whether he submitted his letter pre-election or waited to reveal the information post-election, FBI Director James Comey’s choice would forever be scrutinized and second-guessed. However right or wrong his decision, sending the October 28th letter to Congress was consistent with Director Comey’s clear and unwavering intent to provide extraordinary transparency in this unprecedented situation.

Serina M. Vash is the Executive Director of the Program on Corporate Compliance and Enforcement and is a former Deputy Chief of the Criminal Division in the United States Attorney’s Office for the District of New Jersey.

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