Unprecedented

Comey takes heat for 'unprecedented' rebuke

The FBI director broke with convention by baring findings without charges.

By Isaac Arnsdorf

James Comey's unusual step of detailing the bureau's evidence against Hillary Clinton on Tuesday, before recommending that she face no charges, drew immediate fire from some critics who said he was acting more like a politician than a policeman.

Indeed, the speech was a stark departure from the prosecutor's rule of thumb that you should say it in an indictment or you shouldn't say it at all. But former prosecutors said it was a justified exception to assure the public of the probe's independence in an extraordinarily contentious case, especially given the controversy surrounding Bill Clinton's meeting with Comey's boss, Attorney General Loretta Lynch.

"This is a way of saying, 'Look, the FBI wasn't affected in any way, regardless of what happened on that plane,'" said Stephen Saltzburg, a George Washington University law professor and former deputy assistant attorney general in the Criminal Division of the Department of Justice. "Anything less would have left people doubting whether a fair call was made."

But that's not a universal opinion among former Justice Department officials.

"It's not just unusual, it's unprecedented," said Matthew Miller, who was director of the Office of Public Affairs for the Department of Justice under Attorney General Eric Holder and now works at strategic advisory firm Vianovo. "He's put himself into the middle of a political campaign in a way that will call into question the legitimacy of the office."

"You'll now have people in the middle of a campaign able to say, 'Well, the FBI director said Hillary Clinton was careless,'" Miller added. "That's not the FBI director's job to do, and the rules are set up to prohibit that kind of behavior."

Swirling misgivings about political interference in the Clinton email case prompted Comey to detail the investigation's findings before handing it off to prosecutors. He started off by stressing that he hadn't conferred with officials in other parts of the government, and they would find out what he was about to say just like everyone else.

Comey prefaced his conclusion that no reasonable prosecutor would take this case with a 15-minutes rebuke of Hillary Clinton and her staff, saying they were "extremely careless" and "should have known" better. He enumerated how many email chains were classified at the time (52), how many were "top secret" (eight), and how many were marked classified ("a very small number"), and how many work-related emails were not turned over to the State Department ("several thousand").

"Given the public outcry over the events of the last week, transparency was clearly needed," said Kathleen Rice, a former assistant general counsel at the FBI now with Faegre Baker Daniels. "These are appropriate and compelling reasons, especially given the FBI’s interest in being seen as an objective and apolitical law enforcement and intelligence agency."

Comey's characterization was so negative that it became clear he wasn't going to recommend charges, or else his remarks would have been considered prejudicial, Saltzburg said.

"He's saying this is what the FBI is, this is what we did, and this is what we found," said Roscoe Howard, a former U.S. Attorney for the District of Columbia now at the law firm Barnes & Thornburg. "We're not going to be controlled by either of these parties: he's going to say some good things for her and he's going to say some good things for the Republicans."

"You can say it's not supposed to be about politics, but the reality is if you're not paying attention to this election you have to come out of a cave," he added.

Typically, people under investigation are left to wonder for years if the probe has finished or will result in charges. While announcing the end of an investigation would be a welcome change, investigations are inherently one-sided and don't give people an opportunity to defend themselves, said Ellen Podgor, a criminal law professor at Stetson University.

"I just think it's wrong to say the negative things when not indicting a person," she said. "Just limit it to the facts and the bottom line: we are not going to recommend an indictiment. But from a political perspective I can see why he did what he did."

Prosecutors try to avoid disparaging people's reputations outside of court, but sometimes they have to present unfavorable facts to provide their assessment, said Ron Machen, a former U.S. Attorney for the District of Columbia now at the law firm WilmerHale.

"Director Comey has the utmost integrity and calls the facts as he sees them," Machen said. "He will not pull any punches for anyone on account of political considerations."

Investigators also typically don't broadcast what they haven't proved, but some of Comey's statements also ventured into hypotheticals and unknowns, such as raising the possibility that work-related emails were deemed personal and deleted by Clinton's lawyers, Podgor said.

Comey served as deputy attorney general under John Ashcroft in the George W. Bush administration before President Barack Obama appointed him to his current post. And while some Democrats claimed his criticism of Clinton was politically motivated, others noted that his Republican affiliation helps to blunt any suggestion that the FBI's probe was tilted in Clinton's favor.

"This is a moment when it really becomes clear the benefit, the legitimacy benefit, of having a very strong, clear, independent FBI director," said Susan Hennessey, a fellow in national security in governance studies at the Brookings Institution.

Comey's vigilance for the FBI's independence may have led him to take the go-public approach regardless of the Lynch-Clinton controversy, she said. Comey hasn't backed down from clashes with the administration over allowing law enforcement access to encrypted communication and the suggested but unproven relationship between police scrutiny and urban crime (the so-called "Ferguson effect").

"There's no ducking the fact that this is a pretty exceptional case given the amount of focus and given the concerns raised about interference by members of the administration," said Dan Richman, a Columbia University law professor and former assistant U.S. Attorney in the Southern District of New York. "It was very helpful to make public at the stage before it had gotten to the highest reaches of the Justice Department where investigation was going and who was responsible."