When FBI Director James Comey sent a vaguely worded three-paragraph letter to Congress on Friday advising Congressmen and Senators that new information had been discovered in the FBI’s investigation of Secretary Hillary Clinton’s use of a private email server, the effect was swift and predictable. Within hours, her rival, Donald Trump, was calling this “worse than Watergate” (it’s not) and investigative reporters were getting leaks from “senior officials” that filled in the blanks of Comey’s ambiguous statement. Some reports indicated none of the email in question were written by or to Secretary Clinton. Others advised the FBI had not even looked at the email or secured a warrant to do so.
This is precisely why investigators do not comment on ongoing investigations. Putting aside the presumption of innocence we all have, the damage to a person’s reputation that attends having their name connected with the words “criminal investigation” is incredibly damaging. Prosecutors open thousands of cases every year that never lead anywhere and are closed without the public ever knowing the names, much less the subject matter, of those probes. Public officials do not deserve special treatment, they deserve the same treatment as any citizen if they are investigated and cleared or are the subject of an ongoing investigation - silence from prosecutors unless and until charges are filed.
Reporters attempting to excuse Comey as being in a difficult position - either providing notice and taking his lumps (as he is) or withholding notice and being criticized for it - misses the mark by a mile. Comey is not some naive newcomer to the ways of Washington. He was the U.S. Attorney in one of the highest profile offices in the country, served as the second-in-command at the Department of Justice and cut his teeth investigating, yes, you guessed it, the Clintons, in the 1990s. Having held a press conference in July that was, to paraphrase John Podesta, light on substance and heavy on editorial comment, all of which was then used to attack Secretary Clinton, the idea Comey was in a “tough spot” here is laughable. He knew exactly what the impact of his letter would be and the drafting of it was so amorphous that it tarred Clinton as guilty - of something - without any evidence or ability to defend herself, which is now being used to impact the election.
This is precisely why Department of Justice policy is clear that commenting on investigations close to elections should be avoided barring extraordinary circumstances. Comey flouted this policy and, if reports are true, the recommendations of senior officials, including the Attorney General, who counseled against him doing it. Comey’s actions should not just matter to partisan Democrats, but all Americans who believe in the rule of law and the democratic (“little d”) process - the voters are vested with the responsibility of selecting our elected officials, not an FBI Director who is worried about his reputation on Capitol Hill. Our system of government gives both prosecutors and politicians ample tools to address criminal activity, what it does not countenance is an unelected government official inserting himself into an election so close to it.
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