WASHINGTON ― FBI Director James Comey’s unprecedented decision to insert the bureau into the presidential campaign less than two weeks from Election Day has caused a rift in federal law enforcement.
Attorney General Loretta Lynch wanted Comey to follow DOJ protocols and traditions and not reveal the discovery of new emails that might be pertinent to Clinton’s case, The Huffington Post was able to confirm on Saturday, following the account of a Justice Department official in The Washington Post.
The U.S. Attorneys’ manual emphasizes the importance of “limited confidentiality” in “ongoing operations and investigations” to safeguard “the rights of victims and litigants as well as the protection of the life and safety of other parties and witnesses.”
Julie Werner-Simon, a former federal prosecutor who retired from DOJ in August 2015 after 29 years of service, argues that Comey’s decision to make public an incremental development in the investigation with little clear significance is a breach of the protocol outlined in the manual.
“It is shocking and disheartening that someone I admired would do this,” she said. “If I did what he did, I would be censured.”
“My view is that there should be an investigation” into Comey’s behavior, she added. “Under the rules that he violated, that investigation should be secret. That’s the point.”
There are exceptions to this protocol under unusual circumstances, but Comey would have had to consult with a senior official at DOJ before doing so, according to Werner-Simon, who instructed federal prosecutors about these protocols as senior litigation counsel at DOJ, the last position she held there.
“Who gave him permission? If he is going to use unusual circumstances under the U.S. Attorneys’ Manual, who did he discuss it with?” Werner-Simon said.
Nancy Gertner, a retired federal judge appointed by President Bill Clinton who now lectures at Harvard Law School, had a similarly stinging indictment of Comey’s actions.
“I cannot think of any reason except Comey’s own personal interests to make public the possibility that there may be emails whose content he does not know that may be relevant to the investigation,” Gertner said.
To release that kind of information is outrageous. Nancy Gertner, retired federal judge
“To release that kind of information is outrageous,” she added. “The FBI typically does not release information about an ongoing investigation, information that could have an impact on an upcoming election ― and he does not have the foggiest idea what is in these emails.”
The professional considerations that may have motivated Comey are obvious. Comey, a Republican, faced considerable criticism and scrutiny from congressional Republicans for declining to press charges against Clinton for her handling of classified emails on a private email server.
Comey appeared to recognize the unusual nature of his decision to release the information about the newly unearthed emails on Friday in a letter to his employees explaining the choice.
“Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed,” Comey wrote. “I also think it would be misleading to the American people were we not to supplement the record.”
Indeed, some former federal prosecutors believe that based on his previous statements, Comey was required to follow up with Congress.
Solomon Wisenberg, a former federal prosecutor who served as deputy independent counsel in the investigation of the Monica Lewinsky scandal, argues that Comey made a mistake in July when, in an announcement that the DOJ was not pressing charges, he criticized Clinton’s behavior and subsequently testified that he would re-open the investigation if new information warranted it. In so doing, Comey obligated himself to keep Congress up to date, argued Wisenberg.
“His duty was to shut up and he didn’t. If you want to talk about violating protocol, he has provided a roadmap,” he said.
Having made that error, Comey was likely obligated to inform Congress about the discovery of the new emails, according to Wisenberg, who is now a white-collar criminal defense attorney.
“He told them if things change, he would report to them. Given that set of facts, he was duty-bound to do it,” he said.
John Bellinger, a former legal adviser to the State Department and National Security Council in the George W. Bush administration and one of many Republican former federal prosecutors to sign a letter calling for nominee Donald Trump to be “rejected” at the polls, offered a similar assessment.
“I don’t think Comey had any choice but to disclose the fact now so that he is not accused later of withholding material information from Congress,” he said.
But, Bellinger also argued, “Comey now owes it to the American people to announce his assessment before the election, even if he normally would have taken a longer period to run down every loose end.”
Werner-Simon maintains, however, that if Comey felt obligated to provide Congress with piecemeal updates about the investigation, he should have been less equivocal about the implications of his findings.
Comey, she noted, wrote that the emails “appear to be pertinent to the investigation,” and other phrasing that lacks the full-throated conviction that would justify making an exception to protocol.
“If there is some kind of rule of completeness argument, then be more forthcoming in your controversial disclosure,” she said. “Do not use words like ‘appears’ or ‘could be’ or ‘maybe’ or other conditional speech. If you’re going to do it, then at least do it in a standup complete way.”