I’ve taught and written in the area of employment law for nearly a quarter of a century. Hillary Clinton is applying for the job of president of the United States—a higher position than most of us will ever seek, but a job nonetheless. Let’s say you or I apply for a job in our respective professions. The Federal Bureau of Investigations maintains a database with the criminal records of all Americans. To your knowledge, however, you have no criminal record. You have never been arrested, charged or convicted of a crime.
Nevertheless, the Director of the FBI has made a unilateral decision to supply as part of a routine criminal background inquiry, not merely records of arrests, charges, and convictions, but evidence of any potential involvement in criminal activity, including any mention of your name in connection with a criminal investigation about which you are not the subject. This is essentially the action that FBI Director James Comey took against Hillary Clinton last Friday.
The vast majority of jobs in the United States are at-will: the employer can refuse to hire you for any reason, except an illegal one. And it is generally not illegal for an employer not to risk that a prospective employee might in some ill-defined, unexplained manner be wrapped up in a criminal investigation.
Of course, you, the applicant, have no way of refuting what the FBI has said because it has not provided the employer with the “evidence” to which it refers in the background check, nor, for that matter, has the FBI even examined the evidence itself. This was the state of the record when Comey cryptically informed Congress that “the FBI cannot yet assess whether or not this information may be significant.“
You do not get the job. Do you believe you have been treated fairly? Of course not. Do you feel that the FBI has acted properly in spreading innuendo about you that you cannot possibly rebut because you have no idea what evidence, if any, it is basing its innuendo on? No. Should a candidate for president be held to a different standard? Only if you believe that the principles of the Constitution don’t apply to her.
One such principle is due process, which in short means when there are charges against you, you must be given notice and the opportunity to meet those charges. Of course, when Comey vaguely alludes to new evidence that may or may not be relevant to charges that were never brought against Clinton in the first place because there was insufficient evidence to do so, he debases any notion of due process as well as the Constitution itself. He leaves Clinton to shadow-box against evidence that Comey hasn’t himself seen, let alone presented to Clinton for her to rebut.
Most harmful of all, Comey leaves voters to make a negative inference from evidence that they’re not likely to be made privy to prior to casting their votes. In short, he’s inviting us to act on the same kind of speculation as the employer who is presented with no evidence of criminal wrongdoing, only speculation that there might or might not be some evidence at some point in the future.
In the coming days, there will be plenty of innuendo against Director Comey, such as the reputational threat that Republicans must have hung over his head to make him take the unprecedented step of trying to influence the outcome of our country’s free elections. Will this innuendo be fair? Perhaps no more so than Comey’s innuendo against Clinton. But Comey built this glass house, so it’s fair that he see his reflection.