Did FBI Director James Comey's Email Announcement Break The Law?

Oct 31, 2016
Originally published on October 31, 2016 4:37 pm

FBI Director James Comey's letter to Congress reporting a renewed look into emails that could be related to Hilary Clinton's private server rocked the presidential race on Friday.

The Clinton campaign and supporters have jumped on Comey for making such a dramatic announcement so close to an election. The question being raised now is whether the timing and style of the announcement make it illegal.

THE CLAIM

Democrats allege this is more than just an 11th-hour inconvenience. Senate Democratic Leader Harry Reid says Comey may have violated a law known as the Hatch Act by making the investigation public this late in the election season. In a letter to Comey, Reid said the move revealed a "clear double standard" and accused Comey of using his position as FBI director to influence the election.

"In tarring Secretary Clinton with thin innuendo, you overruled longstanding tradition and the explicit guidance of your own Department. You rushed to take this step eleven days before a presidential election, despite the fact that for all you know, the information you possess could be entirely duplicative of the information you already examined which exonerated Secretary Clinton."

To further his claim of a double standard, Reid also accused Comey of sitting on evidence of ties between the Trump campaign and the Russian government.

THE CASE

The Hatch Act prohibits federal employees from using their official authority or influence to affect the result of an election.

An official complaint was filed with the Office of Special Counsel and the Office of Government Ethics by Richard Painter, the chief White House ethics lawyer under the George W. Bush administration from 2005 to 2007. Painter wrote about his decision in an op-ed for The New York Times on Sunday, calling Comey's move "an abuse of power." He also added:

"The rules are violated if it is obvious that the official's actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election."

Painter told NPR's All Things Considered Monday that Comey's first mistake was giving in to pressure from lawmakers who wanted to be kept posted on any further investigations related to Clinton.

"They do not have an obligation to do that," Painter said. "He never should have promised Congress that he would give them updates with respect to Secretary Clinton, when he doesn't do that with respect to anybody else, when it's clear that the only reason they want the information is politics."

And in the Times, Painter raises another concern about Trump and the Russian government, echoing Reid's claim of a double standard between the FBI's actions toward Clinton and the GOP candidate's public encouragement that Russia hack Clinton's emails.

"But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress that the candidate was under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate's office tower, hauling out boxes of documents and computers in front of television cameras.

"The F.B.I.'s job is to investigate, not to influence the outcome of an election."

Whether there was or wasn't good reason for Comey's announcement is certainly up for debate. Stephen Vladeck, constitutional law professor at the University of Texas, Austin, said on C-SPAN Monday that Comey's letter left him "flabbergasted" and "raises serious questions about the FBI director's judgment."

But Vladeck says intent is difficult to prove in this case.

"The problem is that for the Hatch Act to be violated, it would have to have been Director Comey's purpose to influence or affect the election. You know, only Director Comey knows his purpose."

The Obama administration doesn't appear to agree with Reid and Painter. White House press secretary Josh Earnest said Monday afternoon "the president doesn't believe Director Comey is trying to influence an election."

THE GOP RESPONSE

Rep. Trey Gowdy, R-S.C., chose the position of amusement on MSNBC's Morning Joe, calling Reid's letter "laughable" and pointing out that Reid didn't mention the Hatch Act after former President Bill Clinton's meeting with Attorney General Loretta Lynch, a move that many in the GOP saw as an attempt to sway the original FBI investigation into Clinton's use of a private email server. But Gowdy, who is best known as chairman of the House committee that interrogated Clinton about the 2012 Benghazi attack, also tried to use President Obama as an example.

"I mean, President Obama is actively campaigning right now for a candidate for president, and that doesn't violate the Hatch Act. So how Jim Comey supplementing his record before Congress violates the Hatch Act is just laughable."

The president, along with the vice president and a few top officials from the executive branch, are exempt from the Hatch Act.

THE PRECEDENT

Democrats haven't avoided scrutiny under the Hatch Act this season. Housing Secretary Julian Castro was accused of violating the law when he endorsed Clinton in an April interview with Katie Couric, despite being seated in front of the official Housing and Urban Development sign and discussing government policy for most of the conversation. Castro attempted to separate his official position from his personal views by first saying, "Now taking off my HUD hat for a second and just speaking individually, it is very clear that Hillary Clinton is the most experienced, thoughtful and prepared candidate for president we have this year." But that separation wasn't enough for the U.S. Office of Special Counsel.

"He impermissibly mixed his personal views with official government agency business," according to Carolyn Lerner, head of the Office of the Special Counsel.

"Because he advocated for and against Presidential candidates while appearing in his official capacity, Secretary Castro violated the Hatch Act's prohibition against using one's official authority or influence to interfere with or affect the result of an election."

THE CONSEQUENCES

When contacted, an official with the Office of Special Counsel wouldn't comment on Comey's case. But should the OSC find a government official in violation of the law, it must write a report to send to the president. Punishments could range from a reprimand to complete departure of the job.

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