Even absent Hillary Clinton’s latest bleat about how he cost her the election, FBI director James Comey’s testimony on Wednesday at a routine oversight hearing of the Senate Judiciary Committee was certain to be anything but routine. And sure enough, Comey mounted a vigorous defense of his letter of October 28, 2016 — eleven days before Election Day — in which he informed Congress that the Clinton e-mails investigation had been reopened.
Director Comey did nevertheless allow that he was made “mildly nauseous” by the suggestion that his letter affected the vote’s outcome.
Several features of the hearing were especially worth noting. I have dealt with one of them in a separate column — viz., the director’s continuing defense of his assessment that there was insufficient criminal-intent evidence to warrant charging Mrs. Clinton. Now, let’s turn to another: the Democrats’ effort to skew or erase entirely the context of Comey’s October 28 letter.
It would be foolish to deny that the letter may have had some impact on voters. The effect was likely very small: By the time of the letter (as our Jim Geraghty has related), 35 million Americans had already voted; most voters had already made up their minds about the e-mail scandal after many months of coverage and commentary; Comey’s notification did not announce charges or accuse Clinton of additional wrongdoing; and the ultimate determination that the new evidence did not change the FBI’s decision against bringing charges was also announced before Election Day. Still, to say President Trump’s margin of victory was “razor thin” is an understatement. So close was the contest that it is hard to discount anything as a factor possibly material to the outcome.
That said, Democrats would now have you believe that history began on October 28. In reality, the critical context of that day’s letter to Congress was the Comey press conference four months earlier — on July 5 — followed by the director’s extensive congressional testimony in the days that followed. It makes no sense for Democrats to complain about the letter and its departure from protocol but ignore the press conference’s far more extensive departures. To the (debatable) extent that there was a need to notify Congress in late October that the investigation had been reopened, it was precisely because the director, in early July, had made a highly unusual, highly public pronouncement that the investigation was complete and the case too weak to charge.
You may recall the unrestrained Democratic glee over that particular breach of protocol.
Of course, smarter Democrats perceive this incongruity. Thus, rather than ignore the Comey press conference, they bowdlerize it, choosing to remember only the first three-quarters of Comey’s bravura performance. That, you’ll recall, is the part in which the director rebuked Clinton for her inappropriate conduct, her “extreme carelessness” in handling highly classified information, the cavalier culture that prevailed during Clinton’s State Department tenure regarding the need to safeguard intelligence, and so on.
What Democrats choose to forget, and hope you will too, is the closing section of Comey’s remarks. That was when he seized the power of the Justice Department to render legal conclusions about both the prosecutorial merits of the case and the interpretation of the relevant criminal statute. In this conclusion, not only did Comey claim that Clinton’s conduct did not warrant an indictment, he gratuitously added the declaration that no “reasonable prosecutor” could disagree with his assessment.
This was a specious claim, but it commanded a respectful hearing, having come from an official who was not just the nation’s top investigator but had been a highly accomplished, top-ranking prosecutor in his own right. And remember (even if Dems prefer that you forget), Comey’s “lack of criminal intent” theory swept aside not only the classified-information felonies but also Clinton’s willful destruction of tens of thousands of government records — more felonies. By the time the press conference ended — poof! — it was as if someone had taken BleachBit to the thought of filing such charges.
Now that Clinton has lost and Democrats need a scapegoat, they have suddenly developed amnesia over this decisive aspect of the Comey press conference. But it saved Clinton’s candidacy. Now that we know what a lousy campaign she ran from July to November, Democrats understandably don’t regard this as any great favor. Back in July, however, when they were so sure that only Comey — and certainly not Donald Trump — could derail the next Clinton administration, Democrats could not have been more effusive in proclaiming the director’s unwavering integrity and legal acumen.
Now that Clinton has lost and Democrats need a scapegoat.
In fact, back then, while Clinton campaign staffers were a bit miffed over Comey’s censorious description of Clinton’s misconduct, smart Democrats understood that it was this stern critique that imbued Comey’s ultimate rejection of criminal charges with such credibility. Democrats knew they badly needed that credibility: Attorney General Loretta Lynch had just sullied herself with the Bill Clinton tarmac tête à tête. Comey’s projection of confident, fair-minded authority was essential if Democrats were to convince voters that Clinton had been exonerated — and on the matter of exoneration, they calculated that it didn’t matter how recklessly irresponsible Clinton’s actions were as long as they could hang their hat on the FBI director’s conclusion of no criminality.
Just as Democrats used to love the specter of Russian meddling in U.S. political processes when the objective was to undermine Ronald Reagan or give Barack Obama more “flexibility,” they were equally enamored of FBI intrusion into the election as long as the director’s irregular commentary was helping them. They got fastidious about law-enforcement secrecy protocols only when the commentary cut against them in October — and they didn’t decide that the commentary was consequential until they lost.
At Wednesday’s hearing, Director Comey defended his October 28 letter by opining that to have failed to inform Congress would have been an “act of concealment,” which in his view would have been “catastrophic.” This is more melodramatic than persuasive.
Almost all criminal investigations are concealed from Congress and the public — indeed, grand jury proceedings are concealed by statute. Far from being outrageous, withholding information from Congress (and, for that matter, from the political components of the executive branch) is the norm in law-enforcement. That is why officials refuse to confirm or deny the existence of an investigation. It’s why they never describe the evidence collected in an investigation unless and until they are prepared to put their money where their mouth is by filing charges. They know that due process consists of formal judicial proceedings in which the accused has a fair opportunity to defend herself — not trying people in the court of public opinion by public revelations of uncharged investigative information.
Reasonable minds can differ about whether, under the circumstances that Director Comey himself created, the October 28 letter was appropriate. On one hand, having informed Congress that the investigation was closed and that he would keep lawmakers apprised of any important new developments, Comey persuasively contends that the letter was necessary to honor that commitment. On the other hand, there is an equally strong case that he could have held off on the notification while the FBI plowed through the late-discovered information that triggered it — namely, newly recovered e-mails on a device seized in the separate investigation of disgraced former congressman Anthony Weiner (whose wife, Huma Abedin, was Clinton’s closest aide).
As we now know, that review was also concluded before Election Day. Thus, had Comey waited a few more days to alert Congress while his agents studied the new e-mails, he would have been in a position to know their importance or lack thereof. With that information, Comey might have prudently decided there was no need to say anything prior to the election. And even if he had decided to speak, Clinton would not have been hurt by a letter saying the FBI had reviewed newly discovered evidence but remained convinced that Clinton should not be charged.
In any event, let’s be clear on five things.
First, if Comey had not conducted the unnecessary July 5 press conference, there would have been no cause to issue the October 28 letter.
Second, it is not possible to square the press conference and the claim that politics did not influence the FBI’s decision-making. Ordinarily, the FBI does not confirm or deny the existence of an investigation and does not publicize the evidence uncovered in investigations that do not result in charges. In this instance, Comey decided not to follow those strictures. Why? As he put it during the press conference, he was making his “unusual statement” because “the American people deserve those details in a case of intense public interest.” Put aside that a lot of investigations are of intense public interest and yet the usual no-comment rules are followed. What made this investigation of intense public interest was politics, pure and simple.
It is not possible to square the press conference and the claim that politics did not influence the FBI’s decision-making.
Third, had the protocols been followed, the FBI and Justice Department would have made no statements about the investigation, including no statement that it had been closed. Mrs. Clinton had no right to a clean bill of health from the FBI. She should have had to content herself with being able to note that she had not been charged with a crime and to urge that this meant she was not guilty of one. But she had no right to have voters advised, before going to the polls, that there was no active investigation into her misconduct.
Fourth, there is an important reason why the FBI does not make a formal announcement when an investigation is closed without charges: It frequently happens that new information surfaces, justifying the reopening of the file. The real problem in Clinton’s case is not that the public was told that the investigation was reopened; it is that the public should never have been told that it was closed in the first place.
Fifth and finally, what cost Clinton the election is her unfitness for public office. The e-mails investigation bears on that flaw in that it demonstrates her lack of character, her outsized sense of entitlement, her habitual flouting of rules, her thoroughgoing deceitfulness, and her inability to explain her behavior (indeed, to explain her explanations) in a way that does not insult the intelligence. Whether, in addition to all that, her conduct was also illegal is an interesting academic question, but it is superfluous when it comes to the only question that matters: Should the Democrats have made such a person their presidential nominee.
That being the case, if Mrs. Clinton really wants to know why she lost, she will not find the answer in any letter Jim Comey has ever written. She needs to look within.