Yesterday, while editing an post that I intended to send out this morning. I inadvertently hit “publish” rather than “save,” so subscribers received an extra transmittal yesterday.
Sorry about that! But let’s continue that discussion….
I don’t know what the effect of Comey’s actions will be on the election; we still have 8 days, and given the magnitude of the criticism he has received, perhaps he will clarify or otherwise clean up his mess prior to election day. There is speculation that his action will generate more enthusiasm and higher turnout among Trump voters, but it is also possible that anger at what will seem to many Democrats a “dirty trick” will motivate Clinton voters.
My own concern is the potential effect on the down-ticket races. Who knows? We’re in uncharted waters here.
That said, let’s revisit the ethics of Comey’s action.
A letter in yesterday’s New York Times addressing that issue deserves broad readership. It was from Richard W. Painter, currently a professor at the University of Minnesota Law School, who formerly served as the chief White House ethics lawyer from 2005 to 2007, during George W. Bush’s administration.
Mr. Painter has filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations.
The opening paragraphs of his letter explain the reasons for the rules that are in place–the rules Comey disregarded.
The F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect.
Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.
It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.
But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.
The F.B.I.’s job is to investigate, not to influence the outcome of an election.
The letter deserves to be read in its entirety, but here is Painter’s conclusion.
Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate for public office that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position. Serious questions also arise under lawyers’ professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.
This is no trivial matter. We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.