Here's The Choice That Comey Really Made

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Yesterday, FBI Director James Comey said the very thought that he could have swayed the presidential election made him “mildly nauseous.”

His hypocrisy makes me want to puke.

Testifying before the Senate Judiciary Committee, Comey insisted that when he decided to reveal—just 11 days before the election—that the FBI had reopened its investigation of Hillary Clinton’s emails, he did so without regard to political consequences.

This is about as plausible as claiming that he crept into a lady’s bed solely for the purpose of protecting her from ghosts—with a fearlessly principled disregard for sexual consequences.

Consider too how Comey described the would-be agonizing choice he had to make in deciding whether or not to tell Congress—and consequently the whole nation—that he was re-investigating Hillary’s emails.

Knowing he would be asked about this decision, Comey came prepared with a ringing speech. In a voice pitched up by anxiety and accelerated by the urgent need to vindicate his conduct, he claimed that he was faced by a set of doors labelled “speak” and “conceal.” When framed in this way, how could we fault his decision to speak? To conceal is to hide, to suppress, to cover up—all the things that men of principle are supposed to loathe. Given that alternative, speaking out looks nothing less than heroic.

But this is a grossly self-serving way of defining the choice that Comey faced: a “highly loaded” set of alternatives, in the words of Adam Schiff, ranking member of the House Intelligence Committee.

As Schiff notes, the real choice Comey faced was not to “speak” or “conceal” but rather to comply with or violate a longstanding practice meant to keep the FBI out of politics. This rule—obeyed for decades across both Republican and Democratic administrations--bars the FBI from taking any action in the 60 days before an election that might affect the electoral prospects of a candidate. For any such action could prompt voters to cast their ballots on the basis of allegations rather than proven facts.

Given the strictness of this rule, the strength of the reasoning behind it, and the consistency with which it has been followed in the past, what higher principle could justify the violation of it—especially since the FBI never revealed before the election that it was investigating possible collusion between the Trump campaign and Russian agents?

The latter investigation could lead to charges of treason against one or more members of the Trump campaign—right up to charges of treason against Trump himself. When Comey discovered a new batch of emails that might have contained further evidence of Hillary Clinton’s misuse of classified data, did he truly believe that the possibility of such misuse posed a graver threat to national security than the possibility of treason by a candidate for President of the United States?

What then was the overriding principle here? Comey says he felt bound to tell Congress that he was re-opening his investigation of Hillary Clinton because he had previously announced (on July 5) that the FBI had decided—after a year-long investigation—to bring “no charges.” But on October 28, he had absolutely no new evidence that Secretary Clinton had mishandled classified information. All he had was a newly discovered batch of emails that might have contained such evidence. If the possibility of treason by a candidate for president was not sufficient to override the longstanding rule against FBI revelations made within 60 days of an election, how on earth could it be overridden by the possibility of new evidence about Hillary’s emails? Why would silence about that possibility have been “catastrophic,” as Comey claims?

The answer can only be framed in political terms, which is what Comey’s choice boiled down to: follow the longstanding rule by saying nothing about the new batch of emails, or give way to partisan political pressure. Throw a bone to the dogs who had been rabidly barking at Comey ever since he recommended no criminal charges against Clinton. Make Hillary’s enemies think that he too might consider taking steps toward locking her up.

Not incidentally, he was also anxious to cover his ass. Just in case the story of the new investigation should leak out, he wanted to be the first to leak it—lest he be accused of “concealing” anything damaging to Hillary Clinton.

Did his announcement of October 28 throw the election to Trump? We’ll never know for sure, just as we’ll never know for sure whether or not Trump would have won without the help of the Russians.

But in any case, Comey’s statement of October 28 resoundingly confirms the wisdom of the longstanding rule against any FBI allegation made about a candidate within 60 days of an election. It is now well established that the Russians did all they could do damage the candidacy of Hillary Clinton. And it is equally clear that whatever his motivation may have been, Comey’s announcement of October 28 also damaged her candidacy—as he surely must have known it would.

Yet even more disturbing is the further damage he may do. Juxtaposed with his pre-election statements about the FBI investigation of Clinton, what does Comey’s resolute silence about the FBI investigation of Trump—something he admitted only after the election—tell us about his willingness and capacity to probe the possibility of collusion between the Trump campaign and Russian agents? When and if he finds clear evidence of collusion, will Comey fearlessly speak out, or will he choose to conceal it? Nothing he has done or said so far tells us clearly which way he will move.