What was FBI Director James Comey thinking?
Let’s take stock of all that we’ve learned since Comey sent a cryptic letter to several Republican congressional committee chairs on Friday informing them that the FBI had uncovered some emails that may, or may not, have something to do with a previous investigation into Secretary Hillary Clinton’s private email server.
We know that Comey does not know what is in these emails.
We know that many, possibly even all, of these emails may be duplicates of messages the FBI already reviewed.
We know that, at the time when Comey wrote his letter, the FBI had not even obtained a warrant permitting them to read these emails.
Some reports state that the emails are “not to or from Clinton.”
Oh, and we know one other thing. We also know that Comey violated longstanding Justice Department protocol when he decided to disclose the very few facts that he actually did disclose in his letter to the Republican chairs. And we know that he wrote the letter over the explicit objections of Attorney General Loretta Lynch.
Taken together, these actions constitute a fireable offense.
President Obama should fire James Comey. He should do so not because of the political consequences of Comey’s actions — although those consequences could be quite severe — but because Comey’s actions show an unacceptable disregard for the safeguards that exist to protect innocents from the awesome power of a federal police force.
Where Comey went wrong
The Justice Department, as former Deputy Attorneys General Jamie Gorelick and Larry Thompson explain in the Washington Post, operates “under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.” Yet Comey gave unclear but highly damaging information to a major presidential candidate’s political enemies just eleven days before the 2016 election.
And he did so despite the fact that he has no idea whether there is any evidence that she did something wrong — and despite the fact that his agents haven’t even begun to search for such evidence. It’s as if Comey implicated Clinton in the John F. Kennedy assassination because Comey heard that she may have once been in Dallas.
It’s as if Comey implicated Clinton in the John F. Kennedy assassination because Comey heard that she may have once been in Dallas.
Hillary Clinton is many things. She is a former first lady, a former senator, and a former secretary of state. It is more likely than not that she will also be the next president of the United States. But Clinton is also an American, and that means that she enjoys certain rights if the state attempts to bring its police power to bear against her.
The Bill of Rights spills more ink on the rights of people caught up in the criminal justice system than on any other topic. Police (or FBI agents, who are effectively federal police) cannot subject people to “unreasonable searches and seizures.” They cannot obtain a search warrant, except upon “probable cause.” And even then, the scope of the search must be limited and specified in the warrant.
After police clear these hurdles, criminal suspects still enjoy a panoply of other rights. They cannot be twice tried for the same crime by the same sovereign. They must be afforded a fair process. They must be granted a speedy trial, legal representation, and an impartial jury. Excessive bail may not imposed on criminal defendants, nor may “cruel and unusual punishments” be inflicted on the guilty.
The framers of our Constitution, in other words, were well aware of the dangers of an unchecked police force, and they made considerable efforts to rein in law enforcement. One of the most important of these checks is a constitutional system which requires police and prosecutors to clear a rising series of hurdles as they seek to impose more and more state power upon an individual.
As the Supreme Court explained in Terry v. Ohio, police may not even perform a fairly cursory stop unless they are “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Law enforcement typically cannot conduct a more intrusive search, or make an arrest, unless they have “probable cause” to believe that a crime has been committed — and, in the case of a search, to believe that the search will uncover evidence of such a crime. Prosecutors, meanwhile, must prove beyond a reasonable doubt that a criminal defendant committed a crime in order to obtain a conviction.
Over at the Volokh Conspiracy, conservative legal scholar Orin Kerr argues that “expanding the FBI’s investigation from the unrelated case to the Clinton case” may itself violate the Fourth Amendment. But even setting aside that potential problem with the FBI’s actions, the FBI is also constrained by a wide range of laws and internal policies intended to protect innocents against the agency’s power.
The Justice Department’s longstanding policy of not disclosing information that could influence an election is very much an extension of our constitutional structure. The Constitution imposes escalating burdens of proof on the government in order to prevent the state from bringing its force to bear against someone who has not be shown to be guilty of any crime. And the Justice Department’s policy serves this same goal.
As Gorelick and Thompson explain, DOJ policy exists to “avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.” The New Yorker’s Jane Meyer quotes an unnamed former senior Justice Department official making a similar point. A disclosure like the one Comey made on Friday “impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”
Imagine that you were applying for a job. Imagine now that, after a successful interview and glowing job references, you fully expected to receive a job offer in the coming weeks. Now imagine that, while you were awaiting that offer, the local police chief contacted the company you hoped to work for, and informed them that they were conducting some vague investigation into something you did in the past.
That’s what James Comey did to Hillary Clinton.
The cardinal rule of American criminal law is that no one may be punished — or, in many cases, even subjected to a significant inconvenience — without some reason to believe they are somehow engaged in wrongdoing. Comey broke that cardinal rule. And he did so despite the fact that, as far as he or anyone else knows, the FBI has no evidence whatsoever that Clinton engaged in wrongdoing.
So what comes next?
To be sure, federal officials, even very senior and high ranking ones, sometimes make mistakes. (Just ask Hillary Clinton.) It would be wrong to drag Comey across the coals simply because he committed an error of judgment. Firing an FBI director should require more than that.
But Comey’s error cuts at the most important safeguards that must exist to prevent one of America’s most powerful and intrusive federal agencies from endangering basic civil liberties. To his credit, Comey reportedly keeps a copy of the FBI’s wiretap request targeting Martin Luther King, Jr. on his desk as a reminder of the agency’s ability to do wrong.
Lest there be any doubt, that ability is enormous. A congressional investigation into former FBI Director J. Edgar Hoover COINTELPRO revealed that the FBI targeted political dissidents with tactics that were “indisputably degrading to a free society.” The FBI “anonymously attack[ed] the political beliefs of targets in order to induce their employers to fire them.” It mailed “letters to the spouses of intelligence targets for the purpose of destroying their marriages.” It falsely labeled “as Government informants members of groups known to be violent, thereby exposing the falsely labelled member to expulsion or physical attack.” And it falsely informed a Chicago gang leader that the Black Panthers have “a hit out for you” in the hopes that the gang leader would “take retaliatory action.”
In one of the FBI’s darkest moments, it “mailed Dr. King a tape recording made from microphones hidden in his hotel rooms which one agent testified was an attempt to destroy Dr. King’s marriage.” This record, moreover, “was accompanied by a note which Dr. King and his advisors interpreted as threatening to release the tape recording unless Dr. King committed suicide.”
The rules are there for a reason. They are there because law enforcement agencies become very dangerous if they think they can make on-the-fly decisions about what crosses the line.
There’s no indication that Comey engaged in misconduct approaching what happened under Director Hoover, and there’s no reason to think he had nefarious intent. In a letter to FBI employees, Comey said that he wrote the inflammatory letter to the Republican chairs because he felt “an obligation to do so given that I testified repeatedly in recent months that our investigation was completed” and that he also thought “it would be misleading to the American people were we not to supplement the record.”
But that does not change the fact that Comey violated longstanding policies that exist to protect both the rights of the accused and the integrity of America’s democracy.
An FBI director decides that the rules don’t apply to just this one case, because of the unusual level of public interest. An agent breaks into a home without a warrant because he doesn’t want to wait to catch a particularly nefarious criminal. A beat cop plants evidence on an especially dangerous criminal, because the public is better off with him off the street. All of these things may be done for good purposes, but the rules are there for a reason.
Law enforcement agencies become very dangerous if they think they can make on-the-fly decisions about what crosses the line. The rules exist to keep good faith actors from becoming J. Edgar Hoover.
The political nightmare
The irony of Comey’s bluster is that its highly political nature likely insulates him from consequence.
In the still-probable event that Clinton wins the presidential election, she cannot fire Comey — at least until the FBI concludes this latest phase of its examination of her emails — lest she appear to be engaged in self-dealing.
That leaves President Obama, who no doubt does not want to be accused of protecting his chosen successor. He may also be worried about leaving a key vacancy that the dysfunctional Senate is unlikely to fill before the next president takes office. If that president is Clinton, there are obvious reasons why she should not appoint anyone to replace Comey until after the email investigation is concluded.
The FBI does have a clear contingency plan in place to deal with a long-term vacancy at the top. Deputy Director Andrew McCabe, a career FBI agent with about 20 years of experience, would assume Comey’s duties in his absence.
So, in removing Comey, President Obama can send a clear message that the rule of law depends on law enforcement agencies being bound by rules that apply to all cases. And the agency can continue its business without the awkward spectacle of Clinton choosing Comey’s successor before the agency completes its inquiry into the new emails.
This, admittedly, is not an ideal solution. McCabe’s wife ran as a Democrat for a seat in the Virginia state senate. Republicans will no doubt use that as an excuse to question the new acting director’s impartiality.
But we are in this mess, at least in part, because Comey felt an obligation to ward off attacks from Republican lawmakers by providing them with information he had no business making public before an election. It’s time to stop basing crucial decisions about what rules apply to law enforcement on an impossible desire to placate GOP partisans, and to start restoring confidence in the FBI.