First, GOP nominee Donald TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders ‘After Action Review’ of National Guard’s role in protests MORE threatened to throw his political opponent in jail.
Then he sought to undermine the integrity of our republic by insinuating that he might not respect the results of the election.
Now Trump has been given a gift by none other than the director of the FBI, who, under pressure from the Trump campaign and congressional Republicans, felt it incumbent upon him to cast a cloud of suspicion over Hillary ClintonHillary Diane Rodham ClintonWhite House accuses Biden of pushing ‘conspiracy theories’ with Trump election claim Biden courts younger voters — who have been a weakness Trayvon Martin’s mother Sybrina Fulton qualifies to run for county commissioner in Florida MORE, the Democratic nominee.
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To be fair, Comey’s actions were precipitated by the actions of former President Bill ClintonWilliam (Bill) Jefferson ClintonWill the ‘law and order’ president pardon Roger Stone? Five ways America would take a hard left under Joe Biden The sad spectacle of Trump’s enablers MORE, who — in what could generously be called a major lack of judgment — decided back in June, when his wife’s use of a private email server was still under investigation, to board the plane of Attorney General Loretta Lynch and conduct a prolonged conversation.
Even if no illicit activity took place, the very appearance of impropriety should’ve been enough to dissuade the former president and the attorney general from engaging in such a discussion.
Had they not, perhaps Comey would not have felt the need to make a public pronouncement about the FBI’s investigation. It was during his July announcement when he stated his view that Hillary Clinton, as secretary of State, and her staff had been “extremely careless” in the handling of State Department emails.
You could also argue that this wouldn’t be happening had Huma Abedin, Clinton’s chief aide, submitted all possible devices that may have contained emails under investigation. Whether she did so intentionally or simply through an oversight, it’s clear that she did not fulfill her responsibilities.
And, of course, there is Abedin’s husband. Enough said about him.
And Clinton herself, let’s not forget, bears some of the onus for her original decision to use a private email server without clear notification, and for her handling of the subsequent scandal that ensued.
But these failures of judgment from others do not acquit Comey, whose actions have been, at the least, questionable — and, perhaps, illegal — since he may have violated the Hatch Act.
First, let’s consider his “extremely careless” comment. It was, itself, extremely careless. It served no purpose, other than a political one.
As former Attorney General Eric HolderEric Himpton HolderTrump official criticizes ex-Clinton spokesman over defunding police tweet Obama to speak about George Floyd in virtual town hall GOP group launches redistricting site MORE noted in a Washington Post editorial, “Instead of making a private recommendation to the attorney general — consistent with Justice Department policy — he chose to publicly share his professional recommendation, as well as his personal opinions, about the case. That was a stunning breach of protocol. It may set a dangerous precedent for future investigations. It was wrong.”
Imagine, if you will, if a prosecutor, while holding a press conference about a rape suspect, said, “There’s not enough evidence to seek an indictment, but I think the suspect is a dangerous pervert.” Would that be OK, or would it be an example of someone going beyond his or her official duties in an attempt to influence matters with personal opinion?
As Holder noted, “The department has a practice of not commenting on ongoing investigations.” And there’s a reason for it: Any public comment could throw off the investigation and potentially influence the public.
That is why, especially when it comes to politically sensitive investigations, the FBI has to be extraordinarily careful. Comey’s July announcement — despite his reasons for conducting it — and his comments there were extremely ill-advised.
But now the director has gone even further, essentially placing a cloud over Clinton’s head right before what may be the most important election since 1864.
He did it, supposedly, because he had promised Congress to keep them informed. In his letter to Congress, he referred to “recent developments.”
But the key word here is “developments,” and how you define it.
This is not a semantic argument. What really is a “development”?
If some guy had called the FBI with an anonymous tip that he knew of existing emails that had yet to be discovered, would that be a development?
Until you’ve investigated something and weighed the substance of it, nothing has developed. Does the existence of another computer with emails truly change the crime? Does it change Clinton’s intent? Was there any indication that these new emails were a “development,” or were they simply a matter to be investigated?
It’s clear that they were the latter. Even in his letter to Congress, Comey admitted that the FBI had not yet assessed the importance of the newly discovered emails. In other words, it was not yet a development.
When asked in July by Rep. Lamar Smith (R-Texas) whether he would report back to Congress if new information came to light, Comey replied, “It’s hard for me to answer in the abstract. We would certainly look at any new and substantial information.”
But the discovery of the new computer has not yet produced any substantial information, so why is he reporting it — against the advice of the attorney general and the deputy attorney general?
Comey stated, in an internal FBI memo, that “we don’t know the significance of this newly discovered collection of emails.”
And that’s true, which, again, makes it not yet a development.
The truth is that, if there was ever a crime here, it likely never rose above the level of a misdemeanor. The public often conflates the terms “confidential” and “top secret,” without realizing that there is a vast difference between them. Many internal government memos are labeled “classified” or “confidential,” but that doesn’t mean that they contain the nuclear codes.
Had Clinton been convicted of mishandling government information, the likelihood is that she would’ve had to pay a fine and possibly endure some censure.
The only thing that matters here — the only thing truly of any importance — is the presidency.
If Comey, by his actions, proves to have denied Clinton the presidency, how is that due process?
How is that justice?
Ironically, Judge Gonzalo Curiel — a federal judge appointed by President Obama whom Trump personally insulted by saying he couldn’t adjudicate a case fairly due to his Mexican heritage — did the opposite of what Comey when it came to the civil trial against Trump University: He postponed it until after the election in order to avoid a media frenzy and not interfere with the democratic process.
Comey should’ve taken his cue from Curiel.
In his recent piece for The New York Times, former chief White House ethics lawyer Richard W. Painter noted the seriousness of Comey’s actions: “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.”
Painter rightfully called Comey’s actions “an abuse of power.”
We already had an FBI director who engaged in political gamesmanship and consistently abused his power. His name was J. Edgar Hoover and he kept files and recordings on the Kennedys, the Rev. Martin Luther King Jr. and anyone he viewed as going against his personal ideology and concept of America.
While Hoover’s improvements to FBI techniques, including the collection of forensic evidence and the maintenance of records, greatly improved the FBI’s functional abilities, his abuses of power largely overshadow those improvements.
The FBI must be beyond the fray. Comey’s actions have not only put the bureau directly in the middle of a competitive election; they have also undermined the FBI’s integrity.
What is to happen now if Clinton or Trump loses a close election? What if one of them wins the popular vote and the other the Electoral College? How will the people react?
They might conclude, and not without cause, that we’re in danger of becoming a banana republic.
And the Comey Affair will have done a great deal to help lead us there.
Rosenfeld is an educator and historian who has done work for Scribner, Macmillan and Newsweek.
The views expressed by contributors are their own and not the views of The Hill.
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