Republicans immediately consumed with gusto Friday’s news that FBI Director James Comey sent a letter to Congressional leaders informing them that his agency was reviewing new information relating to the Hillary Clinton email case. They gleefully declared that the FBI had “reopened” the email investigation. While this is a misleading exaggeration of Comey’s admittedly vague letter, the political use that GOP partisans have made of it illustrates why public releases of information relating to pending investigations of public figures up for election have traditionally been withheld.
When I served as chief of the Public Corruption/Integrity Section of the U.S. Attorney’s Office in Miami, there was an unwritten policy at the Justice Department that no public actions be taken with respect to any investigation involving a public figure within six months prior to an election in which that figure stood as a candidate.
This meant it was verboten for a prosecutor to seek an indictment, authorize a search warrant, issue a press release or take action that would likely be made public in the months prior to an election. The reason for this protocol was clear and simple. Investigations of public corruption, like all other investigations, are designed to determine the truth about allegations of criminal conduct and, if justified, to serve as a basis for criminal charges — and not to influence elections.
To the extent that such disclosure might have such an unintended effect, the policy required us to stand down from such action until after the election. If the public figure were elected in the meantime, and if charges were subsequently brought and resulted in a conviction, there would be sufficient mechanisms in place to remove him or her from office. The concept reflected in this policy is that the Department of Justice is not in the business of doing opposition research for political opponents of public figures.
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James Comey’s letter to Congressional leaders was contrary to that long-standing, well-founded policy. To release the sort of vague information contained in his letter so close to an election for even a city councilman, much less a president of the United States, is profoundly disturbing. Given his long and distinguished career, Comey should have been sensitive to the concerns behind this policy. That he was concerned about correcting any of his prior statements to the Congress does not excuse what he did. He could have waited a mere 11 days to make any correction, if the information even required correction, and relied upon this long-standing DOJ policy as justification. That he wasn’t sure as to the significance of the new information is not a factor that supports his decision to send this letter.
Having access to 11,000 agents, if there was such a compelling exigency to disclose new information to Congress, he should have called in a bucket brigade of agents over the weekend before he released this brief letter. Comey had to know his letter would provide ample fodder to Clinton’s opposition, which would interpret his letter as a reopening of the investigation.
Hopefully he has called in the troops to determine whether there is anything of consequence in this new information. And since he has already acted precipitously, one would hope he would promptly release his findings by Monday morning, or at least clarify his vague one-page letter to undo the harm he has done, and which the policy he violated seeks to prevent.
I have long admired Comey for his independence, beginning when he commendably stood up to then-White House Counsel Alberto Gonzales when he tried to exploit former Attorney General John Ashcroft’s hospitalization to obtain authorization that no sane Attorney General would have authorized, save Gonzales himself. I also agreed with both his assessment that Ms. Clinton’s conduct would not be deemed prosecutable by any fair-minded prosecutor, but that her conduct was extremely careless. However, the letter he sent Friday was ill-advised, unjustifiable and threatens to have a profound impact on this election. A prosecutor, or investigator, should never conduct himself in a manner likely to lead to such a result.
As so succinctly stated generations ago by Supreme Court Justice George Sutherland, the job of a prosecutor and, I would suggest by extension, an investigator, is not to obtain convictions, but to see that justice is done. One might certainly add as a corollary that a prosecutor’s job is certainly not to affect elections in which a potential subject of an investigation is a candidate. Indeed, he should conduct himself in every way possible to ensure that his actions are not likely to affect election results.
Sad to say, in this regard, whether by design or inadvertence, Comey failed, and he should take immediate steps to correct his blunder. If that means calling all hands on deck to comb through these new documents, he should do so with all dispatch. He has demonstrated in the past that he is a person big enough to admit his error, and I hope he will do what he can to clean up this mess immediately.
To do otherwise, I fear, could result in history calling into question this most critical election of our lifetime.
Bruce Udolf is the former chief of the Public Corruption/Integrity Section of the U.S. Attorney’s Office in Miami. He served as associate independent counsel for the Whitewater investigation.