Around 10 PM CT, Hillary Clinton’s electoral “firewall” crumbled. Television anchors, visibly stunned by the incoming results, began to examine where the Democrat’s candidacy had stumbled. Americans wanted change, but Clinton was more of the same. Her hawkishness repulsed the isolationists. Her (former) support for the Trans-Pacific Partnership drove away many Rust Belt Whites whose jobs had been outsourced.
Then there was the nagging email scandal, which reinforced public perceptions of Clinton as shady and untrustworthy. The scandal was supposed to have been put to rest back in July, when F.B.I. Director James Comey concluded that Clinton should not be criminally charged for the mishandling of confidential materials on her private email server. But then on October 28, 2016, just ten days before the election, Comey wrote a letter to congress announcing that he would be reopening the investigation.
“In connection with an unrelated case,” the letter read, “the F.B.I. has learned of the existence of emails that appear to be pertinent to the investigation.” (These emails were discovered on the computer of former New York congressman Anthony Weiner – a discussion for another time.) On November 6, Comey announced that these new emails did not change his original conclusion that Clinton should not be charged for any wrongdoing.
The issue here is that Comey, a government official, discussed an ongoing F.B.I. investigation involving a presidential candidate. According to the Washington Post, the Justice Department warned Comey that it was against departmental policy to release information that could influence election results. Comey disregarded their suggestion, defying legal and political precedent. Even before the election, Democrats and Republicans alike called his actions unethical, irresponsible, and even illegal. Now, in the wake of a surprise Trump upset, furor surrounding Comey’s actions will only intensify. But what is not to like about government transparency? Why the universal backlash?
In an interview with NPR, former federal prosecutor Peter Zeidenberg opined that Comey made “a poor decision. The information that [the F.B.I.] provided just invites speculation without informing the public about what's going on.” When asked if Comey’s actions were exceptional, Zeidenberg affirmed that they were “pretty extraordinary.”
Even outspoken Trump supporter and former judge Jeanine Pirro admonished Comey on her Fox News program, proclaiming that his announcement to congress.
“...Both disgraces and politicizes the F.B.I., and is symptomatic of all that is wrong in Washington… Comey’s actions violate not only longstanding Justice Department policy – the directive of the person that he works under, the Attorney General – but even more important, the most fundamental rules of fairness and impartiality.”
Comey’s letter to congress was followed swiftly by a letter to FBI employees, in which he reiterated that he did not “know the significance of this newly discovered collection of emails.” Without presenting any new evidence against Clinton, then, Comey had potentially influenced the opinions of the American electorate. So his actions were irresponsible. They also may have been illegal…
On October 29, Richard W. Painter, a former ethics lawyer for President George W. Bush, filed a complaint against Comey and the F.B.I. As he explained in an op-ed for The New York Times, he believes that Comey’s disclosure to congress represents an abuse of power, in direct violation of the Hatch Act.
Passed in 1939, the Hatch Act is a federal law that prohibits the use of one’s political office to influence the result of an election. According to Painter, Comey broke the law when he failed to keep the investigation of a political candidate confidential. It should be noted that Comey’s motive for releasing the information is irrelevant. Whether he had wanted to meddle in the election, or simply had wanted to be transparent with the American voter, he would be considered equally guilty under the law. If found guilty, Comey would be forced to step down as director of the F.B.I. Government ethics officials will have to take a close look at the legality of Comey’s recent actions. Scholarly debates, meanwhile, will likely revolve around issues of interpretation: What exactly constitutes an abuse of political office? How do we know if any individual action truly influences an election? Regardless of Comey’s ultimate fate as F.B.I. director, these questions are likely to animate legal scholars for the foreseeable future. At the very least, Comey may take comfort in the fact that his new boss will not be Hillary Clinton.