Let’s be clear about one thing straightaway: James Comey did not sabotage Hillary Clinton. If that had been his intention, it was well within his power to outright destroy her candidacy. In the wake of Attorney General Loretta Lynch’s improper meeting with former President Bill Clinton, the Department of Justice was scandalized. Under pressure, Lynch pledged to follow through on the FBI’s recommendation, whatever it was. The decision about whether or not the FBI would recommend charges was ultimately Comey’s to make, and his alone (indeed, Lynch was so vulnerable after her impropriety that she couldn’t even bring herself to order the FBI Director not to inform lawmakers about the discovery of new emails; she was in no position to deny his recommendations on prosecution). If Comey were out to sabotage Clinton, he would have recommended charges; the DOJ would have had little choice but to proceed with prosecution. Regardless of how the case ultimately fared in court, it would have certainly persisted throughout the entire election cycle—utterly decimating Clinton’s prospects.
Instead, Comey declined to recommend charges– despite the FBI having uncovered serious violations of protocol which would have likely landed a lower-profile civil servant behind bars. This decision outraged Congressional Republicans, and even many within the FBI, who accused Comey of playing politics on Clinton’s behalf.
This was not the only time the accusation was made: as the media began combing Wikileaks-released emails that strongly suggested inappropriate relations between the Clinton Foundation, Hillary Clinton’s State Department, and wealthy foreign donors (the latest of many apparent Clinton Foundation violations, see here, here, here, here, here, or here), Comey refused to so much as comment as to whether or not the FBI was considering an investigation into the Foundation—prompting a Breitbart conspiracy theory that he was on the Clinton payroll as well.
To assuage concerns about a possible FBI bias towards Clinton, he assured lawmakers that if new information arose which seemed pertinent to the investigation, he would notify them promptly. And multiple times after closing the investigation new evidence was found—and each time, Comey notified the relevant lawmakers. And after considering the new evidence, reiterated his recommendation against prosecution—despite enormous pressure to reverse course.
Unfortunately, still more potentially relevant evidence was brought to Comey’s attention mere weeks before voters went to the polls. This left the FBI director in a Catch-22: if he failed to notify lawmakers of these developments, especially if they proved significant, or if lawmakers found out by other means, then he would be accused of participating in a cover-up on behalf of the Obama Administration and its chosen successor. As a result, if Clinton won, the perceived legitimacy of her administration, along with the standing of the FBI and DOJ, would be significantly undermined. But Comey also knew that if he did reveal the new evidence prior to the election, he’d be accused of trying to tilt the scales in favor of Clinton’s opposition—especially in the event that Trump won.
Ultimately Director Comey decided to follow through with his pledge of disclosure, politics be damned, believing this was the best way to assure lawmakers and the public of the independence, transparency, and credibility of the FBI’s investigation. He issued a carefully-worded memo to the Senate Judiciary Committee informing members the FBI had discovered new emails which may be pertinent to the investigation, and that after they had time to process the materials they would once-again decide whether or not to re-open the case against Clinton.
Of course, Republican lawmakers immediately leaked the memo and misrepresented its contents to suggest that Clinton may be facing imminent charges. And of course, mainstream media outlets immediately ran with that sensational story without wasting time or effort on nuance or fact-checking. The Trump campaign, for its part, attempted to out-exaggerate the media in the service of their political agenda. And in their estimation, they were successful: at a post-election talk, former Trump campaign manager Corey Lewandowski suggested that it was James Comey’s letter that enabled Trump’s comeback—a narrative also embraced by many Clintonites (and indeed, Clinton herself) to explain their November 9 defeat.
But here’s the thing: there is very little meaningful evidence that Comey’s letters sank her candidacy. Indeed, even President Obama rejects that narrative: Clinton lost because she had a poorly-ran campaign which arrogantly neglected critical blue states, disparaged white working class voters, and failed to generate sufficient enthusiasm among undecided voters in swing states. These failures had been obvious for months—they are the reason the race was so close in the first place. If Democrats want to scapegoat Comey for Clinton’s loss, they will have learned nothing from their defeat, and their defeats will continue.
But let’s set the politics aside for a moment; in this time of transition, we would all do well to remember why Comey was appointed as FBI Director in the first place:
Against an Imperial Presidency
In the aftermath of the September 11, 2001 attacks, the Bush Administration dramatically expanded the scope, powers and autonomy of law enforcement and national security agencies—and radically redefined the role of the Executive relative to the Congress and the Supreme Court.
One of the chief architects of these revisions was Deputy Assistant U.S. Attorney General John Yoo, who argued—contrary to the overwhelming consensus of legal scholars—that the Framers of the Constitution modeled the role of the President on King George III of England. As a result, the Executive can do virtually anything not explicitly forbidden in the Constitution—particularly on matters related to foreign affairs and national security. In fact, even a number of the explicit Constitutional checks on Presidential power can be waived by the Executive, as he deems necessary, especially in a time of war.
For instance: like kings, the POTUS can pardon those convicted of a crime. Conversely, they can call for the execution of enemies of the state. They can strip individuals of their citizenship, and the constitutional rights afforded to them thereby (for instance, declaring suspects as “enemy combatants”—thereby allowing them to be held indefinitely without trial, tortured, or even killed extra-judiciously). Presidents have the power to interpret or apply treaties like the Geneva Convention as they see fit, or could even unilaterally nullify treaties as needed. They can interpret Congressional laws in the same way (via signing statements and executive orders), rather than merely choosing to accept or reject them outright. They can wage war without any sort of approval—checked only by Congress’ power over the purse. They can even defy the Supreme Court if they obstruct the president’s foreign policy and national security imperatives.
This legal philosophy was heavily championed by Deputy Assistant U.S. Attorney General, Alberto Gonzalez, and came to influence the policies of U.S. Attorney General John Ashcroft in many respects. However, Ashcroft was also pulled in the other direction by a rebel faction of the DOJ, headed up by Deputy Attorney General James Comey and Assistant AG’s Jack Goldsmith, and Robert Mueller.
In one particularly stunning episode in this conflict, Alberto Gonzalez sought to renew and expand the now-infamous NSA surveillance programs. Comey had convinced Ashcroft to deny reauthorization, but then the Attorney General fell ill and required surgery. Ashcroft appointed Comey as the Acting AG until he could resume his duties. When Gonzales presented him with proposal for renewing the questionable NSA Surveillance programs, Comey predictably refused to authorize. In an attempt to go around Comey, Gonzalez tried to visit the heavily drugged and disoriented Ashcroft in the hopes that he could persuade him to sign the papers while he was not thinking clearly—but Comey intercepted Gonzalez at the hospital, foiling his plot. He then threatened to resign, along with a large contingent of the DOJ, if the White House tried again to ram this bill through their department.
Ultimately, the Bush Administration ended the impasse by taking responsibility for authorization out of the DOJ’s hands. And in Bush’s second term Alberto Gonzalez—a man who tried to circumvent the Acting AG in order to get a medically unsound person to sign an unconstitutional edict– would be nominated by the President to succeed Ashcroft as Attorney General. In this role he would oversee many more infringements of civil rights and civil liberties. Comey, for his part, would choose to resign rather than serve underneath Gonzalez—however, his Congressional testimony would later help exorcise Gonzalez from the DOJ as well. Thereafter, he remained outside the government. That is, until he was called back into service by Barack Obama.
When President Obama named Comey as Director of the FBI, he praised his appointee’s “fierce independence” and “deep integrity” (in fact, Comey has been previously considered by the Obama Administration for a spot on the U.S. Supreme Court). Democrats widely lauded the choice, praising Comey for sticking to his principles without regards to politics. But of course, this was when his actions undermined the Bush Administration. He was condemned as irresponsible or even malicious for exhibiting these same characteristics in a way that proved problematic for Hillary Clinton—resulting in calls for his resignation from prominent Democrats.
Such calls are as short-sighted as they are hypocritical: it is more important now than ever to have a principled and politically-independent Director of the FBI—one who keeps a copy of the request to wiretap Martin Luther King Jr. on his desk to daily remind him of his agency’s capacity for injustice and overreach:
Just weeks into office, President Trump already seems keen to test the limits of executive authority—even beyond Obama’s radical extensions. Jeff Sessions plans to fundamentally retool the Department of Justice. Meanwhile, the post-9/11 expansion of national security and law enforcement agencies’ power to target Americans remains largely unchecked. The potential for abuse is widespread—and when called upon to enforce ethically or legally questionable edicts, it will be up to honorable civil servants like James Comey to fulfill their sworn duty and instead defend this nation’s laws and uphold its values. Let’s hope they are up to the task.