Comey’s late hit: Abuse of power, thumb on the scale

    FBI Director James Comey's announcement that his bureau was reviewing new emails possibly relevant to Hillary Clinton's private email server investigation has thrust him into the public spotlight again just days before Election Day. (AP Photo/Pablo Martinez Monsivais

    FBI Director James Comey's announcement that his bureau was reviewing new emails possibly relevant to Hillary Clinton's private email server investigation has thrust him into the public spotlight again just days before Election Day. (AP Photo/Pablo Martinez Monsivais

    Courtesy of James Comey’s abuse of power, the FBI has crafted a new legal standard: You’re guilty of unspecified innuendo, based on unexamined information that may not even be evidence, until you’re perhaps proven innocent at some future undetermined time.

    The FBI director’s Friday hit on Hillary Clinton — there are emails on Anthony Weiner’s laptop, although he can’t “yet assess whether or not this material may be significant” — is nirvana-propaganda for the Trumpkins. Hillary is back under a cloud just in time for the election, for maybe or maybe not doing something that maybe smells bad, and she can’t defend herself because she has no access to whatever may or may not smell bad, and nobody is telling her what it is or isn’t, with no timetable for telling her.

    Wow. Not even J. Edgar Hoover dared meddle in public with a presidential election.

    But hey, don’t take my word for how disgraceful this situation is. Larry Thompson, a Republican who served as a deputy attorney general under George W. Bush, co-wrote a blistering critique of Comey’s conduct yesterday, assailing his “misuse of prosecutorial power” — specifically, his deliberate breach of the Justice Department’s “long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.”

    Yup, influencing an election was — until now — a long-established a no-no. Thompson co-writes: “Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps … such actions or disclosures risked undermining the political process. A memorandum reflecting this [policy] has been issued ever four years … including in 2016.”

    Comey “should have abided by the policy” — the FBI is part of the Justice Department — because “it is important not to allow an investigation to become hijacked by the red-hot passions of a political contest.” But alas, thanks to Comey, “we now have a real-time, raw-take transparency taken to its illogical limit, a kind of reality TV of federal criminal investigation … It is antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy.”

    Thompson says it better than I can. And another Bush administration alum — Richard Painter, a White House legal adviser from 2005 to 2007 — is not only saying it; he’s acting on it. He has filed a formal complaint with the government’s Office of Special Counsel against Comey and the FBI, accusing them of violating the federal Hatch Act. (If you haven’t heard of that law, here’s the language: Federal employes and agencies shall not use their “official authority or influence for the purpose of interfering or affecting the result of any election.”)

    Painter, a Republican, writes today: “I never thought that the FBI could be dragged into a political circus surrounding one of its investigations … This is no trivial matter. We cannot allow FBI or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power.”

    Painter also reminds us that the FBI is reportedly investigating Russia’s suspected links to the hacking of the Democratic National Committee and the Clinton campaign. It wouldn’t be surprising, he writes, if the FBI was also studying possible links “between a candidate for president of the United States and the Russian computer hacking,” plus the candidate’s “business dealings with Russia,” plus the fact that the candidate has “publicly encouraged the Russians to hack the email of his opponent and her associates.”

    Has Comey and the FBI publicly offered us a scintilla of raw info about that investigation? Or talked about that investigation at all? Nope. Nor should they, because, as Painter points out, “It would be highly improper, and an abuse of power, for the FBI to conduct such an investigation in the public eye, particularly on the eve of the election.” In fact, “It would be an abuse of power for the director of the FBI, absent compelling circumstances, to notify members of Congress that the candidate was under investigation.”

    But because there’s a different standard for Clinton, Comey violated Justice policy and committed an abuse of prosecutorial power. The likeliest explanation is that, after taking months of right-wing abuse for his decision not to recommend criminal charges, he finally caved to Republican pressure and decided to throw them a bone — enveloping Clinton in a fresh cloud of suspicion at the 11th hour, in the spirit of “transparency.”

    And the 24/7 cable networks fell for it in their usual ways. Any Trumpkin who thinks “the media” is “rigged” against Trump should’ve watched the Pavlovian feeding frenzy, because this weekend, once again, the cable nets demonstrated that they will focus on the newest bright shining object to the exclusion of everything else. The frenzy continues, even though Comey has tried to dial it back by doubling down on his vagueness. He told FBI employes: “Given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression.” (About what?) “There is a significant risk of being misunderstood.” (About what?)

    The big question, of course, is whether this farce will twist the election. So far, there’s little evidence that tens of millions of rational Americans will switch their votes and find sustenance with a temperamental demagogue who has invited the Russians to screw with our election; who has called for the weakening of our NATO obligations; who has signaled that he’d be fine with the spread of nuclear weapons in Asia; who brags about assaulting women; who brags about not paying taxes and refuses, unlike any candidate in 40 years, to release his tax returns … but you know the list as well as I.

    I doubt that Comey’s 11th-hour abuse of power will change the equation. But I never thought I’d see the day when I’d get nostalgic for J. Edgar.

    Follow me on Twitter, @dickpolman1, and on Facebook.

    Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

    Help us get to 100% of our membership goal to support the reporters covering our region, the producers bringing you great local programs and the educators who teach all our children.