Douglas W. Kmiec and Edward M. Gaffney Jr.
There has been much written questioning FBI Director James Comey’s decision to publicly release a letter to Congress indicating that he may or may not have found some additional email materials of Mrs. Clinton’s in an unrelated investigation. Because of the imminence of the election, the letter in all of its mischievous ambiguity has roiled a political campaign that already was setting new lows for bitterness and insinuation.
For the good of our nation, Mr. Comey needs to step down immediately.
Abraham Lincoln once commented that America would never be defeated by external power, but its internal divisions could prove fatal. Now is the time to take this warning seriously.
In the land there is pervasive talk on all sides of electoral falsehood. As President Obama and Mrs. Clinton see it, overstated Republican claims of voter fraud mask a desire to suppress legitimate Democratic voters. As Donald Trump and former NY mayor Rudy Giuliani see it, skewed media reporting is designed to discourage Republican voters from going to the polls because of distaste or doubt for a highly untraditional candidate.
These allegations of bias are corrosive of the first principle of our Republic that we are a rule of law. It might have been expected for Mr. Comey to be the strongest defender of Thomas Paine’s reminder that in this country, the “law is king.” Regrettably, that has not been the case. Why is this oversight fatal to Comey’s continued service as FBI Director? Consider what Paine wrote in 1776 in his famous pamphlet Common Sense:
But where, says some, is the King of America? I’ll tell you.
Friend, he reigns above, and doth not make havoc of mankind
like the Royal Brute of Britain. . . . in America THE LAW IS KING.
For as in absolute governments the King is law,
so in free countries the law OUGHT to be King;
and there ought to be no other.
Sadly, Mr. Comey has chosen to abandon this first principle by viewing himself as the source of law. Having come to the public’s attention seemingly as law’s hero stopping unpopular domestic intelligence gathering during the George W. Bush administration—the authority for which was disputed between the Bush White House and some Members of Congress—Mr. Comey dramatically came down on the liberal side. Thus did a lifelong Republican seem like a freethinker or at least open-minded. Or was he just sacrificing the law for short-term applause and approval?
Last summer, Mr. Comey opined that no reasonable prosecutor could bring a case against Mrs. Clinton for her handling of State Department emails. Once again, the nominal Republican was siding with the Democratic outcome. A little more applause, but unfortunately, the second notable departure from law and practice established in advance. It has always been the task of the FBI to evenhandedly investigate, and if the facts ascertained reveal a crime, to prosecute it. If the evidence did not, in fact, exist; it is law enforcement’s responsibility to close the file without comment. Having determined Mrs. Clinton to lack the requisite bad intent to jeopardize the nation’s security, Comey’s elaboration of why or how he reached that particular determination was gratuitous. It is consistent, however, with a personality that yearns for the approval of the opposing team without losing any favor among the home crowd.
But here’s the problem. The Cubs and the Indians could not both win the World Series. Mr. Comey tried too hard to end the game with the score tied. In essence, he misperceives equality as neutrality. It’s not his job to even the score, but it is his role to see that the score reflects fair play.
Mr. Comey rather paternalistically sees himself as a standard more excellent than that enacted into law, itself, but this cannot be. Well before Mr. Comey’s pseudo-bipartisanship showed up on the scene, one finds in the history of the Department of Justice, of which the FBI is an honored part, the following:
“It has been the policy of the executive branch throughout this nation’s history generally to decline to provide committees of Congress with access to or copies of law enforcement files except in the most extraordinary circumstances.”
As Robert Jackson, FDR’s attorney general, prosecutor of the Nuremberg cases, and ultimately Supreme Court justice explained: “disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospective defendant, could have no greater help than to know how much or how little information the government has, and what witnesses or sources of information, it can rely upon.”
The dangers of trying to curry favor with Congress in law enforcement matters are legion. The executive cannot effectively investigate if Congress is, in a sense, a partner in the investigation. If a congressional committee is fully apprised of all details of an investigation, as the investigation proceeds, there is a substantial danger that congressional pressures will influence the course of the investigation. Beyond that, disclosure of open law enforcement files include the potential to damage the sources and methods used to investigate as well as to injure the reputations of innocent individuals who may be identified in law enforcement files, but who are not guilty of any violation of law.
All of these dangers are magnified when the release of information about an open investigation occurs on the eve of a presidential contest. As the late Justice Scalia wrote:
“Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, “crooks.” And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation . . . “
The wisdom of these words is acknowledged by both parties to be irrefutable, and hence, the bipartisan decision to let the former Independent Counsel Law expire; the loosely-written language of the law had invited political opponents to insinuate wrongdoing where there was none.
Law can sometimes be ambiguous, but there is no doubt that the Hatch Act of 1939 expressly precludes the use of law enforcement authority to influence an election. Richard W. Painter—an ethics officer in the George W. Bush administration and now a distinguished law professor at the University of Minnesota—wrote recently in the New York Times: “an official doesn’t need to have a specific intent—or desire—to influence an election to be in violation of the Hatch Act or government ethics rules. The rules are violated if it is obvious that the official’s actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election.”
We have no reason to think that Mr. Comey is anything but a nice person. But it is not nice—and not without consequence—to subvert the essential principle of our Republic. If Comey is the hero he thinks himself to be, the next letter he should write is one of resignation in which he accepts the rule of law. The letter should be written and delivered to the president as soon as possible without equivocation, and with the utmost respect for his fellow citizen, regardless of whether that citizen is Democrat or Republican. The letter cannot undo the harm already caused, but it can mitigate it.
Who knows, it might even result in one last round of applause.
 A retired U.S. Ambassador for President Obama and Head of the Office of Legal Counsel (OLC) for Presidents Reagan and the first President Bush. Former Dean of The Catholic University of America and the long-time director of the Center on Law & Government at the University of Notre Dame, Amb. Kmiec is presently Caruso Family Chair in Constitutional Law & Human Rights at Pepperdine University. He is a Republican turned Independent.
 Professor Gaffney served as Attorney-Advisor in the Office of the Attorney General for Presidents Ford and Carter. He is the former Dean of the Valparaiso University School of Law and is a Democrat.