Election 2016

FBI Director James Comey Breaks Federal Prosecutor Rules by Smearing but Not Indicting Clinton Over Emails

Prosecutorial excess and abuse of power.

Photo Credit: www.fbi.gov/

FBI director James Comey's decision not to indict Hillary Clinton over the fact that 110 of 30,000 private emails she sent while Secretary of State were classified (an error rate of 0.36 percent) is now a full-on national political frenzy.

The Associated Press now alleges Clinton lied—for saying there were no classified emails. House and Senate Republicans are demanding Comey immediately testify. House Speaker Paul Ryan told Fox News that “people have been convicted for less.” The New York Times’ front page called Comey’s testimony “an attack ad, ready-made.” And Donald Trump, who initially attacked Comey’s decision as “rigged,” then posted videos of his comments.

But what almost nobody is questioning is whether the FBI director crossed the line, abusing his discretion and his power, by smearing Clinton in the press and interfering in a political campaign. The Department of Justice’s manual for federal prosecutors bars them from making statements about people who aren’t indicted.

“It goes beyond discretion,” said an ex-Connecticut public defender. “It’s completely improper when there’s not going to be a trial.”

The Department of Justice’s voluminous U.S. Attorneys Manual has sections restricting press comments when there’s no indictment in all but the most exceptional cases, barring prosecutors from interfering in political campaigns. It states that prosecutors should not name unindicted defendants, and even cites federal court rulings chastising prosecutors for doing exactly that.

Comey, a Republican appointed as FBI director by President Obama, crossed all three of those lines. Very few commentators noted that Comey shouldn’t have said anything at all, and how unusual it was that he did. One exception was Benjamin Wittes, editor in chief of the Lawfare blog and a senior fellow in governance studies at the Brookings Institution.

“The first notable thing in FBI director Jim Comey's statement on the Clinton email flap is that he issued it,” he wrote. “Normally, the FBI does not issue reports on its investigative findings separate from Justice Department decisions regarding what to do with those findings. Much less does it make public its recommendations, particularly in a fashion that effectively preempts the Justice Department's prosecutorial decisions with respect to those recommendations.”

Comey’s hubris didn’t stop there, Wittes noted. The man who drew Obama’s attention because as an FBI official he privately opposed the Bush administration's torture proposals, told the press Tuesday that, “I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.”

Beyond the fact that the DOJ prosecutors' manual states that all statements have to be cleared through department filters, Comey’s assertion that his remarks are called for as matter of great public interest—“Only facts matter, and the FBI found them here in an entirely apolitical and professional way”—falls flat upon close scrutiny. What he presented was extremely political, and if the DOJ prosecutors' manual is to be taken seriously, equally unprofessional.

What Did Comey Say?

Comey began his remarks by calling them “unusual” but justified in a case of “extreme public interest.” He explained that the heart of the FBI investigation into Clinton’s use of a series of private email servers while Secretary of State concerned 30,000 replies to other department officials.

“From the group of 30,000 emails returned to the State Department, 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received,” Comey said. “Eight of those chains contained information that was top secret at the time they were sent; 36 chains contained secret information at the time; and eight contained confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional emails were 'up-classified' to make them confidential; the information in those had not been classified at the time the emails were sent.”

This tiny number of classified emails is what’s fueling the political frenzy, like the AP calling Clinton a liar and GOP demands in Congress for additional hearings. For perspective, those 110 out of 30,000 emails represents an error rate of 0.36 percent. Congressional Republicans, who are looking for any way to attack the Democratic presidential nominee, claim that Clinton intentionally withheld emails from them. Comey said that wasn’t quite right, yet he also took a swat at Clinton's legal team.

“The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her emails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related emails among the reportedly more than 60,000 total emails remaining on Secretary Clinton’s personal system in 2014,” he said. “It is highly likely their search terms missed some work-related emails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.”

But then Comey went in for the political hit, judging Clinton in the media and the court of public opinion at the same time he was building toward his conclusion that there would be no indictment because nothing she did deserves to be prosecuted.

“They were extremely careless in their handling of very sensitive, highly classified information,” Comey said, referring to Clinton’s tech-support staff. “For example, seven email chains concern matters that were classified at the top secret/special access program level when they were sent and received… Any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”

Then came a series of additional slaps and smears.

“None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at departments and agencies of the U.S. government or even with a commercial service like Gmail,” Comey said. “Even if information is not marked 'classified' in an email, participants who know or should know that the subject matter is classified are still obligated to protect it.”

Comey then hit the State Department for allowing Clinton to use private emails, without acknowledging that former Republican Secretary of State Colin Powell did the same thing.

“The security culture of the State Department in general, and with respect to use of unclassified email systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government,” he said, essentially calling the department an unindicted co-conspirator.

Then came more guilt-by-association.

“We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account,” he said, which translated, means people she was communicating with were likely targeted by hackers. He speculated, “Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”

Then Comey backtracked, concluding that none of this carelessness rose to the level of a criminal violation that could be prosecuted.

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” he said.

J. Edgar Hoover’s Ghost

Mainstream media and Republicans fawned over Comey’s comments, even as GOP congressional leaders claimed their sense of justice was offended because the opposing party’s presidential nominee would not face federal charges.

Virtually nobody outside of legal circles and academia questioned the appropriateness or outrageousness of Comey’s comments.

One academic legal blogger, Stetson University College of Law professor Ellen Podgor, noted that most FBI investigations with no indictments don’t issue public statements; that the FBI’s investigation was one-sided; that Comey cited hypotheticals without facts; that his accusations about her lawyers were unnecessary and unprofessional; and that it is Congress’ responsibility to upgrade the IT protocols of federal agencies like the State Department. 

“When they do provide an announced recommendation of non-indictment, the FBI should limit their statement to just that,” she said. “There is no need to tarnish a person's reputation in the process—especially when there is no concrete evidence to support the hypotheticals.”

Other practicing lawyers were more blunt.

“The Department of Justice policies are you don’t comment on people you don’t indict. You don’t punish them in the press,” said an ex-Connecticut public defender. “The other thing is the DOJ policy is you don’t do things to affect elections, period. I don’t see anybody questioning this. Everybody thinks the FBI is sacrosanct.”

“I think it was highly inappropriate,” said John Williams, a civil rights lawyer from New Haven, Connecticut. “I suppose he will get away with it because [as FBI director] he is not a prosecutor. And you do get that all too often. Law enforcement will issue a press release and the prosecutor will not say anything.”

“It’s like a perp walk, but this is worse, because they’re saying we will not arrest them,” Williams said. “To hold a press conference where he [Comey] makes comments on the behavior of the person who will not be indicted? That’s not appropriate. I don’t recall ever seeing that by a FBI director. It harkens back to J. Edgar Hoover’s days.”

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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