FBI Director James Comey’s announcement Tuesday that the agency will not recommend charges against Hillary Clinton was blatantly political, just not the way critics claim.
Presumptive Republican presidential nominee Donald Trump tweeted that Comey’s decision not to seek charges against Clinton over her use of a personal server while she was Secretary of State shows a “#RiggedSystem.” Other Republicans chimed in to suggest Comey corruptly sought to appease his potential future boss.
But it was to avoid such criticism that Comey wandered into political positioning. Anticipating attacks and probably worried about the appearance of Attorney General Loretta Lynch’s ill-advised meeting with former President Bill Clinton, Comey tried to telegraph evenhandedness. He balanced his announcement with information about the job he was given, recommending whether to charge Clinton, with views that were not his job to share.
Comey, a Republican picked by President Obama for a 10-year term, did not have to hold a news conference to say the FBI was not seeking charges against Clinton. He said doing so was “unusual.” It was more like unprecedented.
Comey opened the surprise press conference by noting that neither the Justice Department, to which his recommendation went, nor the the rest of the Obama administration knew what he would say. The director built drama by waiting until the end of his statement to announce the FBI’s recommendation. Before he got there, he took care to trash Clinton’s handling of classified information with the immediately famous words: “extremely careless.”
“Any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation,” Comey said of Clinton’s use of a personal email account to conduct seven top secret conversations.
Those characterizations are notable because, as he said in the same statement, Comey was not tasked with opining on Clinton’s conduct. He was in charge of the investigation into whether a crime occurred.
“In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect,” Comey explained. “Although we don’t normally make public our recommendations to the prosecutors, we frequently make recommendations and engage in productive conversations with prosecutors about what resolution may be appropriate, given the evidence.”
So why go public this time? Because a presidential candidate is involved. “In this case, given the importance of the matter, I think unusual transparency is in order,” Comey said. Transparency on such a closely watched matter is appealing, particularly when Clinton’s aversion to transparency appears to have caused the problem.
But along with public interest, the director’s public description of his decision appears aimed at serving the interests of the FBI and James Comey. By stating that even though Clinton will not face charges she did something bad, Comey sought a sort of of Solomonic balance.
The many problems with that course surfaced quickly on Tuesday.
“Comey will be the most important, unpaid speechwriter any presidential campaign has ever had,” tweeted Scott Jennings, a Republican operative and former political aide to President George W. Bush. “He iced the cake on the Trump narrative.”
Republicans including House Speaker Paul Ryan and Texas Sen. Ted Cruz attacked Comey for concluding Clinton was careless but apparently not criminally negligent. Republicans on the Senate Judiciary Committee demanded the FBI publish documentation on its investigation.
Matthew Miller, who worked as the Justice Department’s top spokesman under Attorney General Eric Holder, called Comey’s presser “absolutely outrageous.” Miller said the Justice Department and FBI typically comment on open investigations only in court, and the agencies should have kept it that way. “Clinton gets worse treatment than anyone else would,” Miller tweeted. “I can’t remember an FBI press conference like that when charges declined.”
Miller said Comey seemed to break Justice Department rules barring comments on ongoing investigations. The rules allow an exception for matters that have “received substantial publicity, or about which the community needs to be reassured,” but only with approval from Justice Department superiors. Comey said he had not “coordinated or reviewed” his statement with anyone at Justice, though that does not exclude the chance he obtained approval to make some statement.
Comey gambled, putting himself forward in a charged process. To avoid the perception of political influence, he served up a statement that will play a significant role in electoral politics. He may have done it to protect the reputation of his agency, and maybe even the federal justice system; noble goals, but still political ones.