November 1, 2016
Comey's Actions Improper, Irresponsible and Possibly Illegal
by Lanny Davis
The following are undisputed facts about what FBI director James Comey did on Friday afternoon in a letter to Congressional Republican leaders just less than two weeks before Election Day:
1. Comey's letter stated, in his own words, that he did not know whether any of the newly discovered emails were "significant" in connection with Hillary Clinton. He did not know anything. That is what he wrote.
2. He wrote the letter without having seen any of these emails. He also didn't write that any of his investigators have seen any of the emails, read them or deliberated on their legal significance.
3. Despite the absence of any known facts mentioned in the letter (i.e., this controversy is all -- all -- speculation about any improper emails sent to Hillary Clinton's private server), Comey's letter led Donald Trump to compare what Clinton has done to Watergate -- a proven criminal conspiracy and obstruction of justice by President Richard Nixon.
4. Clinton has asked for full 100 percent disclosure -- publication -- of all the emails to which Comey has obliquely referred.
5. Not one Republican member of Congress yet has asked for full disclosure of all the emails, as Clinton did Friday night. Nor did Trump. Nor has Trump or any Republican criticized Comey for sending a letter that is vague, fact-free, and admits that it is possible that none of these emails have any significance, and yet has not yet agreed to Clinton's request to publish all the emails now.
6. The FBI director, as a top law enforcement investigator for the federal government, has no legal authority to express an opinion -- as he did when he offered his opinion that Secretary Clinton was "extremely careless" about handling classified emails that were not labeled classified.
7. During public congressional testimony, Comey stated that the little "c" on 3 emails out of more than 30,000 would not have been recognized by experts at classification status of documents -- yet count the number of journalists who fail to report that, and indeed, report the opposite, and the number of Republican pundits on cable TV who do the same. So the record remains that Comey confirms what Clinton has always said -- she never received nor sent any emails labeled "classified" at any level. Yet Comey's Friday afternoon letter failed to correct the record on all the false statements to the contrary by the media and Republican members of Congress.
8. Nor does Comey as FBI director -- an investigative agency, not a prosecution agency -- have any authority to send a report to Congress in the middle of an investigation about the past or present subject of an investigation. He appears to be in violation of the limits on his authority as FBI director by disclosing investigation information -- or possible investigation information -- directly to Congress without obtaining permission from the attorney general or someone else delegated authority by her. His decision to reveal the results of an ongoing investigation, before a published criminal indictment, violates due process principles and pre-indictment secrecy rules and guidelines of the Justice Department.
9. Never has an FBI director gone public (as he knew his letter to Republican leaders would) with suggestions of improper conduct regarding one presidential candidate in the closing days of a presidential campaign -- much less while admitting in the letter that he has no evidence that the subject of the letter ("pertinent" emails) has any "significance" whatsoever.
According to a news report on Friday night by NBC's Pete Williams, none of the emails found on Anthony Weiner's computer that triggered Comey to write his letter to the Republicans were from Clinton. Award-winning author and journalist Kurt Eichenwald also reported in a Newsweek post on Friday night that his sources told him that none of the emails at issue on the Weiner computer were sent or received by Clinton. Yet the national news media so far has not widely reported on those two facts, if confirmed as true, and thus, questioned why anyone is suggesting that these emails are in any way damaging to Clinton.
When Clinton called for the full disclosure of all emails that are the subject of Comey's apparently unlawful and improper letter to Republican members of Congress, Donald Trump not only did not join her in that call for transparency. He jumped to conclusions that this proves she is "corrupt," likened her to Nixon's undisputed criminal obstruction of justice in Watergate, and, naturally, many of his extremists and hateful followers in his audiences, once again, screamed "lock her up" -- without even an indictment, due process or a trial.
Why have the cable news anchors and panelists and much of mainstream media virtually ignored all this -- the violations of constitutional protections of due process, the presumption of innocence when it comes to Clinton? Why have they ignored Comey's blatant irresponsible actions during the closing days of a presidential campaign -- and not called for his resignation and investigation by the Justice Department Office of Professional Responsibility for serious breaches of ethical responsibilities and exceeding his lawful authority as a federal investigator?
I say what Comey has done, and Trump and his hateful followers have done, and many of the Trump apologists on TV cable stations have done, is nothing less than McCarthyism at its worst. I say, as an attorney, that Comey, by writing this letter that he knew would be made public just 10 days before a presidential election, has acted so improperly and outside the boundaries of law and ethics that he should resign and, after investigation by legal ethical authorities and the Justice Department Office of Professional Responsibility, could be disbarred from law enforcement and the practice of law.
I say that Comey has a moral and ethical responsibility to disclose all the emails Clinton has demanded he disclose and hold a press conference to warn all against jumping to conclusions based on his fact-free letter and call out those who have done so. And apologize to the American people for his "extreme carelessness" in writing this letter without facts and without legal or ethical authority.
That is what I think. I hope all fair-minded Americans who believe in due process, whether for Trump or Clinton or whatever your preference, will agree and make their opinions known -- especially to the media.
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Davis is co-founder of both the Washington law firm Davis Goldberg Galper PLLC and Trident DMG, a strategic media firm specializing in crisis management. He served as special counsel to former President Clinton from 1996 to 1998 and is a regular columnist for The Hill newspaper. He has been a friend of Hillary Clinton since they were students at Yale Law School together in 1969 and 1970.