FBI Director James Comey just delivered another self-inflicted wound to his reputation as a straight-shooting, no-spin, apolitical golden boy.
Comey has mastered the art of peppering his statements with highly-charged words that shift the reporting on his statements from the underlying facts to Comey’s characterizations of them.
That’s what he did, for instance, when he used the words “extremely careless” to describe Hillary Clinton’s conduct in an announcement that the FBI would NOT seeks to bring criminal charges against her. As a result, the enduring takeaway from Comey’s statement was more about Clinton’s carelessness, and less about the fact that she had committed no crime.
Comey did it again in his testimony to the Senate Judiciary Committee on Wednesday.
Asked to explain why he went public with re-opening the Clinton email investigation just 11 days before the election, Comey said that he did not have a “no action” choice. His only two choices, according to Comey, were to “speak” or to “conceal.” The choice to speak was a “really bad” one. The choice to commit an “act of concealment,” however, would have been “catastrophic.”
In a choice between “speak and bad,” on the one hand, and “conceal and catastrophic,” on the other, would any upstanding person choose the latter?
But this is pure spin. Skillfully executed, yes, but spin nonetheless.
Start with Comey’s choice of the words “conceal” and “act of concealment.” They are entirely self-serving and misleading.
By “conceal,” Comey appears to be using the most pejorative word possible to describe nothing more than quietly pursuing the re-opened investigation without an acknowledgement, to the public or to Congress, that he was doing so.
Spinning a routine “no comment” policy on non-public investigations into an affirmative “act of concealment” is dishonest. It is the FBI’s longstanding policy not to announce the opening of a criminal investigation, and not to comment on it while it is under way. But they rightly don’t call that a policy of “concealment.”
Comey’s use of the word “catastrophic” to describe the potential consequences of declining to publicly disclose the re-opening of the Clinton investigation is equally overblown, and demonstrably wrong. Once again, Comey is hoping that his characterization will win the day over the underlying facts.
The consequences of following the FBI’s longstanding policy would have been anything but catastrophic. Yes, Comey would have been criticized if he had failed to announce the re-opening of the investigation, and if there actually had been something important in the new emails, and if Clinton had won the election, and if all of this came out after the election. That would have been uncomfortable.
So what? The existence of a scenario in which a losing political party blames the FBI Director for altering the course of an election is hardly a catastrophe. It’s the cost of admission to holding a high government office.
And we know that both the FBI and its Director can and will survive such a scenario because that is exactly what happened. Comey kept silent about the Trump investigation, Trump won, and Democrats are criticizing him for it.
To be sure, there is an arguably legitimate distinction between the Clinton and Trump investigations, but it doesn’t have anything to do with Comey’s spin that failing to speak about the re-opening of the Clinton investigation would be an “act of concealment” that would have “catastrophic” consequences.
Comey’s distinction between the two investigations is that the Trump investigation was still open. The Clinton investigation, by contrast, was closed when he first spoke about it, and only re-opened after he had informed Congress that it had been closed. Since he had previously informed Congress that the Clinton investigation had been closed, Comey reasoned, he had an obligation to inform them when he re-opened it.
Who says? Comey probably would have had an obligation to correct a mistake in his previous disclosure to Congress. But there was no mistake here. When Comey informed Congress that the agency’s Clinton investigation had been closed, it had, in fact, been closed. Nothing had happened to indicate anything different. There was no need to correct anything.
Instead, when the FBI decided to re-open the Clinton investigation, or perhaps to start a new investigation in light of newly discovered documents, it had to make a new, independent decision regarding what, if anything, to say about it.
Comey chose to announce it, despite its inevitable, profound impact on the election. Comey, again posturing as the a-political golden boy, takes umbrage at the very thought that he would have even considered the political impact on the election. Perish the thought! He would never do that!
This ridiculous posturing doesn’t pass the giggle test.
Comey can’t trumpet the FBI’s policy not to interfere in elections and, at the same time, argue that it would have been highly improper to consider the potential impact of his actions on an election. Especially when the action he was taking, in and of itself, was a departure from standard operating procedure.
It’s one thing to say, “we’re going to follow our rules and let the political chips fall where they may.”
But that’s not what happened here. Comey didn’t follow the rules. And he knew that his announcement would not only break the rules, but would also profoundly impact the outcome of the election.
And it did.
And now he tells us he would do it again.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.