This should go without saying, but since based on comments and my Twitter feed a lot of people buy it, I suppose it’s worth knocking it down. The favorite current angle of Comey apologists is to argue that the threat of the NY Bureau leaking the re-started investigation left him no choice but to violate longstanding norms and the explicit guidelines of the Attorney General and send a prejudicial letter about the investigation into Hillary Clinton (but not the investigation into Donald Trump’s campaign.) Comey brings this up in yesterday’s interview:
And then we– parted and she said, “I– I thought you needed a hug.” And she was right. I’m sure it showed on my face how beaten I felt. And then we sat down and she said, “How are you doing?” Loretta Lynch is a really good person and has known me a long time.
She said, “How are you doing?” And I told her that I felt terrible, that I felt beaten, and– but that I didn’t see that I had a choice. And then she said something that floored me. She said, “Would they feel better if it leaked on November the 4th?” And my reaction was– and I said to her, “Exactly, Loretta.”
And so, I don’t know, was she telling me, “You’ve done the right thing?” And, in a way, hugging me because she feels badly I’ve taken this incredibly brutal hit? I don’t know. But I interpreted that as, “First of all, I feel badly for you. And even if you hadn’t made this decision, once you start going to get a search warrant for Anthony Weiner’s laptop to look at hundreds of thousands of Hillary Clinton emails, it’s likely to leak out anyway,” she’s telling me.
And remember, the Department of Justice had thought, “We gotta go get a search warrant,” in the week before the election. And so that’s how I took it. Again, I– I could be wrong about that, but that’s how I took it.
GEORGE STEPHANOPOULOS: One of the reasons it was– you feared it was going to leak out is– ’cause you were dealing with a rogue element of FBI agents and former FBI agents up in New York who were really pushing to get this out there. Were you aware of that?
JAMES COMEY: I knew that there were leaks coming– or appeared to be leaks about criminal investigation of the Clintons coming out of New York. And I don’t know exactly where that was coming from. I commissioned an investigation to find out. I don’t know what the investigation found.
But, yeah, I was worried about– the– the team that had done the investigation was in the counterintelligence division at headquarters, of the emails. And there were no leaks at all, very tight. But the criminal folks in New York were now involved in a major way, and I don’t want to single anybody out ’cause I don’t know where it was coming from.
But there’d been enough up there that I thought there was a pretty reasonable likelihood that it would leak, and that’s what Loretta was reflecting.
GEORGE STEPHANOPOULOS: You had your– your former boss, Rudy Giuliani, out there on television saying something big was coming.
JAMES COMEY: Yes, I saw that. And I don’t know whether that was– it’s part of what I ordered investigated. I don’t know whether that was part of a leak outta the– FBI office in New York that knew about the search warrant. But that was my concern, that once you start seeking a search warrant, especially in a criminal case– counterintelligence is different.
They’re so used to operating in a classified environment. They’re much tighter. But once you start involving people whose tradition is criminal, and in New York which has a different culture, there is a reasonable likelihood it was going to get out anyway.
This defense fails on every possible level:
- Controlling the agents at the NY bureau is Comey’s job. Even taking it at face value, the argument boils down to “my managerial failures left me with no choice but to compound the issue by improperly sending a prejudicial letter.” This…isn’t much of a defense. The fact that his priority was not to put the fear of professional extinction into any agent who leaked news about the investigation but to preemptively do it himself is instructive, and not in a way that speaks well of his actions.
- The argument also assumes that rumors of an investigation leaked by rogue elements at the FBI who couldn’t go on the record would have the same impact as the Director of the FBI explicitly confirming the existence of the investigation, and in so doing strongly implying that there was a very real chance that Clinton was guilty of serious wrongdoing. But this is absurd. The New York Times isn’t doing 5 A1 stories in two days about leaks coming from the NY Bureau that couldn’t be on the record. Guilani’s goons trying to sell the story wouldn’t have been good for Clinton, but both the quality and quantity of coverage almost certainly would have been much different. Comey putting his sterling (justified or not) reputation for Nonpartisan Integritude behind the story makes a yoooooge difference, and the extremely unusual nature of his actions created the strong impression that the FBI really had something on Clinton although they had absolutely nothing.
- Again, a big part of the problem here is that Comey didn’t think the NY Bureau was engaged in an anti-Clinton witch hunt; even now, he claims that there’s a real chance the new investigation might have “change[d] the conclusion in this case.” Again, his assumption that Clinton would win, while surely real, is only part of the story. It’s also very clear he also bought the media narrative that Clinton is, to coin a phrase, crooked.
- Given that despite the saturation coverage a lot of people are unaware of basic facts about the controversy, it’s worth noting that according to the DOJ’s interpretation and consistent application of the relevant statute, it would not have been enough to find classified material on the Weiner laptop. There would have to be evidence that Clinton provably and willfully mishandled classified material. The chances that these emails (many of which, of course, would already have been reviewed) would have this evidence was always exceptionally remote — unless you believe “we know the Clintons are guilty; the only question is what are they guilty of and when will we find the evidence.” And without the application of the Clinton Rules, the dilemma Comey created for himself vanishes — how does the revaluation of investigation of a lead that is quickly shown to be a dead end damage President-Elect Clinton or the FBI? It doesn’t.
Comey made his choice and he owns the consequences. He wasn’t forced to issue a selective and prejudicial letter by other forces.