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The fundamental contradiction at the heart of James Comey’s testimony

Comey stands by his decision to speak about Clinton’s emails days before the election. But his explanation doesn’t add up.

FBI Director James Comey testifies on Capitol Hill in Washington, Wednesday, May 3, 2017, before the Senate Judiciary Committee hearing: “Oversight of the Federal Bureau of Investigation.” CREDIT: AP Photo/Carolyn Kaster
FBI Director James Comey testifies on Capitol Hill in Washington, Wednesday, May 3, 2017, before the Senate Judiciary Committee hearing: “Oversight of the Federal Bureau of Investigation.” CREDIT: AP Photo/Carolyn Kaster

On October 28, 2016 — just 11 days before the presidential election — FBI Director James Comey disclosed in a letter that he was resuming his investigation of Democratic candidate Hillary Clinton’s private email server.

He defended that fateful choice before the Senate Intelligence Committee on Wednesday. But the explanation he lacked internal logic.

On the one hand, Comey said he did not consider politics at all when making his decision. He told a story of a young lawyer who asked him, “Should you consider that what you are about to do will help elect Donald Trump president?” Comey said that he appreciated the question, but that he couldn’t consider “for a second whose political fortunes would be impacted in what way.”

Comey’s understanding of his obligations actually contradicts internal Justice Department guidance, which says that, in the days prior to the election, the FBI should seek to do everything possible to avoid having an impact. Comey himself made that point earlier in the hearing. Avoiding having a political impact obviously requires thought about what potential political impacts might result from your actions.

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Comey’s contention that political considerations didn’t play a role in his decision also contradicts his broader explanation, delivered minutes earlier, for why he decided to release the letter in the first place.

Comey said he saw “two doors” and “one was labeled ‘speak’ and the other was labeled ‘conceal.’” He said he viewed the newly discovered emails as restarting the investigation “in a hugely significant way” and “potentially finding the emails that would reflect on her intent from the beginning.”

He concluded that disclosing the new investigative steps would be “really bad” since it, as he explained earlier, it violated Justice Department protocols and traditions in the days prior to the election. But, Comey said, “concealing” the new investigative steps would be “catastrophic.”

Comey did not elaborate on why lack of disclosure would be “catastrophic.” There is a good reason why he left this point, which was at the center of his testimony, ambiguous.

Waiting to disclose the existence of the emails until he knew what was in them would not be catastrophic legally. The FBI typically only makes announcements after it has considered the evidence and made a decision about whether to issue charges. Comey made the announcement before he even knew what was in the emails.

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Failure to disclose would only be catastrophic politically. If the emails had turned out to be significant (they weren’t) and Hillary Clinton had won, the FBI would be subject to catastrophic political criticism.

In other words, Comey tacitly admitted he made his decision for political reasons, which he also said could not play any part in his decision. It doesn’t add up.

Comey’s testimony also tracked a New York Times report last month that found his decision was “based on the F.B.I.’s expectation that she would win and fearing the bureau would be accused of helping her.”

The obligation Comey felt to not “conceal” the new investigative steps in the Hillary case also doesn’t explain why he felt comfortable concealing an ongoing investigation into whether the Trump campaign was colluding with Russian efforts to interfere with the election. That investigation, which started in July 2016, was only disclosed by Comey this year.