FBI DIRECTOR JAMES COMEY IS UNFIT FOR PUBLIC SERVICE
BY KURT EICHENWALD ON 11/7/16 AT 8:19 AM
James Comey should not simply be fired as director of the Federal Bureau of Investigation. He must be barred forever from any form of public service.
In the last 10 days, Comey has whipsawed the election for president of the United States. Now we know he did it for no reason. When his agents found information that suggested there were emails on a laptop that might have relevance to the investigation of Hillary Clinton and her email servers, Comey did not wait until he knew even a scintilla of information before announcing it to the world. Reasonably, lots of voters assumed there must be a there there—who could imagine a person with the power of the FBI director would turn the election on its head for no particular reason, on the basis of nothing?
Then, Sunday, Comey handed down another missive from on high: Never mind. His agents had looked through the emails and decided they were piffle. His majesty, the FBI director, has not yet deigned to officially inform his subjects—the American people—whether the emails related to the Clinton case or what they were. (However, people involved in the case tell Newsweek that almost all of them were duplicates of what the bureau already had or were personal.) He just said “nothing to see here” and waived us on our way.
Well, forget it, Jim. We’re not moving on. America has just witnessed one of the most—if not the most—egregious abuses of power in the service of one man’s ego in its history. Joseph McCarthy and A. Mitchell Palmer at least believed they were fighting a Communist threat. Richard Nixon, in Watergate, at least had the motive of retaining power and covering up wrongdoing. But Comey—who I do not believe did this for partisan reasons—has no such motive. This was about him, about preserving his now forever-destroyed reputation, about preening with his self-satisfied standing as a maverick who acts based on what he thinks is right, regardless of others’ opinion. But there is a very thin line between being independent and being reckless. And Comey has demonstrated he does not know the difference.
Before launching into a full Comey tear-down, a few facts must be understood. The FBI is an investigative arm of the Department of Justice. Nothing more, nothing less. An extremely small minority are lawyers, or even have basic legal training. They do not—thank God—decide who gets indicted and who doesn’t. Prosecutors run criminal cases and direct the agents. As many prosecutors have told me over the years, there is almost never an instance where agents who have been investigating a case for months do not recommend for prosecution. Tunnel vision is one reason; the fact that agents rise in the ranks by delivering cases that lead to prosecution is another. That is why prosecutors—and through them, grand juries—make the decision to charge or not. They both serve as a backstop to agents who don’t know the law and have no ability to objectively review their own evidence.
(This is why all this nonsense pushed by the Fox Newses of the world has been so deceptive: Screaming “the agents wanted to indict” is on par with “the fish wants to swim.” More important—if any agents really did say these things—they are unfit for the bureau; they must be found and fired immediately for this separate abuse of power.)
What that means is, if the FBI does not even conclude it has enough evidence to write a memo recommending prosecution to the Justice Department, there is simply nothing there. Assuming someone committed a crime when the FBI concludes the evidence obtained in the investigation is not worth turning over to prosecutors is like assuming it must be raining when the skies are clear.
The FBI is never supposed to comment on ongoing investigations and, except in exceptional circumstances, never disclose whether it has or has not recommended prosecution. Instead, on indictment, prosecutors stand up at a press conference, announce the charges, then thank the agents and offices of the FBI who conducted the investigation. If the bureau does not develop enough evidence to merit even a recommendation for prosecution, in those exceptional circumstances where it says anything, those are the words officials use: We have not developed evidence that merits a recommendation for prosecution.
In the last few months, unfortunately, Comey has demonstrated he understands none of this. He has broken these rules time and again, leaving himself in the position where he decided he had to break them a couple of more times. He has acted with a lack of accountability that has not been seen since J. Edgar Hoover held the post. It is unforgiveable.
Comey came into the job as FBI director having been a federal prosecutor and the deputy attorney general in the George W. Bush administration. As anyone who has met him knows, he prizes his reputation for integrity and as one who rises above politics. In fact, he prizes it a little too much. And that is what even his allies in government are saying led to his disastrous decisions in recent months. Like Icarus, driven by hubris, he chose to fly too close to the sun and now has fallen into a sea of near-universal public contempt.
The signs of Comey’s coming downfall showed up quickly. In fact, the event that led to his golden reputation as a man of integrity, when viewed through in the context of everything Comey has done in his time as FBI director, looks quite different. He was cheered when the public learned that, while in the role of acting attorney general at a time when his boss, John Ashcroft, was in the hospital, he refused to sign a document authorizing the continuation of a warrantless wiretapping program used as part of the Bush administration’s counterterrorism efforts. Lots of drama surrounded the event, with Comey—in his later retelling of the story to Congress—as the hero. But in truth, by behaving as if only he knew the truth of the law, Comey burnished his reputation but changed nothing. A couple of fixes were made to the program, and he signed the authorization later.
Plenty of people in Washington knew of Comey’s self-infatuation and predicted it would lead to the exact kind of problem born of his arrogance that has convulsed the country for more than a week. In fact, shortly after he was nominated for FBI director, the Daily Beast quoted an unidentified Justice Department official saying these frighteningly prescient words: “If past is prologue, something will happen in the context of a legal, policy, or operational disagreement where Jim may get on the high horse and threaten to resign or take some other action unless things go the way he believes they should.” When he wanted to issue the now-famous first letter, the attorney general and everyone else consulted in the Justice Department said it was against policy and advised him not to do it. But Comey ignored everyone.
That’s the way it has been throughout Comey’s tenure at FBI. When the Obama administration adopted a policy of cutting down on mandatory minimum sentences, Comey stepped up to the microphones to declare the president wrong. Such sentences, he proclaimed, are helpful in developing cooperating witnesses. (In fact, there is no evidence to support Comey’s statement—mandatory minimums do nothing to persuade potential witnesses to cooperate. He just said it because he thought it was true.)
That was the same standard he used later in talking what was called the “Ferguson effect,” a term used to describe the idea that subjecting police to greater oversight and scrutiny increases the chance that they will be murdered. Not only is there no evidence supporting the idea, it has been thoroughly disproven. Yet Comey advances the idea as gospel based again on nothing but his personal beliefs. He was even urged to stop at a White House meeting, but as always, Comey felt certain he knew best, and continued spewing this falsehood.
Then came the time when the FBI needed to gain access to an iPhone that belonged to the extremists who committed an attack in San Bernardino, California, in 2015. Comey was told that an administration-wide encryption program was under development that would be harmed if he pushed Apple. He ignored the White House and the Pentagon and, in an action that thwarted the government encryption effort, demanded that Apple be forced to unlock the phone.
Time and again, Comey did what Comey wanted to do—regardless of the advice, regardless of what others thought, regardless of whether his arguments had no evidence supporting them. This all came to a head, though, with the investigation of Clinton’s use of a personal email server.
When the FBI concluded its investigation with the decision not to recommend charges, that was all any professional in the position of FBI director would say. There are many reasons for that—primarily, that is the extent of the bureau’s job. It is not an arbiter of morality or competence. More important, if the bureau goes further, both the powerful and powerless are in no position to argue the facts. A sentence that starts with the words “The FBI says…” is almost sacrosanct because of its history in the last number of decades of self-control.
Comey did none of these things. Instead, in an action that horrified many officials who have worked in Republican and Democratic administrations, Comey held a press conference where he blathered on and on about his personal opinions and presented details—sometimes incorrectly—about the investigation. He consulted with none of his colleagues, not even the attorney general. And while he proclaimed he would not be recommending prosecution, he excoriated Clinton for her use of the private email server—a statement that was totally beyond his role. He later told Congress that no prosecutor could ever make a case against her based on the evidence—words that should have cheered Clinton partisans, but which again were horrific. Comey does not speak for prosecutors. The arrogance reflected in that one statement was astonishing.
Then, Comey went further. He opened up the Clinton investigative files and had them posted online. This act was again unprecedented, unnecessary and unexplained. Put simply, Comey was out of control. He was acting under all his own rules—calling press conferences, absolving Clinton, condemning her, speaking for prosecutors, dumping FBI files online—and seemed to be making them up as he went along.
His recklessness opened him up to even more criticism from Republicans. Had he simply made the usual statement about no referral, there would have been nothing else to review. But with his endless proclamations and document dumps, he opened himself and the FBI for more criticism as people with no training in investigations or law—but plenty of interest in politicizing the FBI—picked through everything he said and every scrap of paper to scream that the only reason Clinton wasn’t indicted was because of politics. So much information had been placed in the public record by Comey that no one in the public could tell what was a manipulation of the facts and what was real.
Of course, despite all the outcry, Comey did not consider the possibility he had made a mistake. In a message to his employees in September, first reported by CNN, Comey tersely proclaimed that Jim Comey had been right about everything, if he did say so himself. “I’m OK if folks have a different view of the investigation (although I struggle to see how they actually could, especially when they didn’t do the investigation), or about the wisdom of announcing it as we did (although even with hindsight I think that was the best course),” Comey wrote.
Then came late October. Agents had been investigating allegation that former Congressman Anthony Weiner sent illicit, sexual text messages to an underage girl in North Carolina. As part of the inquiry, those agents seized a laptop and eventually discovered emails on it potentially related to the Clinton case. (Huma Abedin, a senior Clinton aide, is the estranged wife of Weiner, and it is her emails that were found on his laptop.) About a week after they had obtained the device, the agents told Comey about their find late on Thursday, October 27.
The emails had not been reviewed. No one reached out to either Weiner or Abedin to obtain permission to review them. No one tried to get a warrant. Literally, the bureau knew next to nothing. But still, the day after he was briefed, with no further information, Comey sent his letter announcing the non-development to Congress. The letter was vague and almost incomprehensible, leaving it to the politicians and reporters to fill in the blanks.
With Democrats reeling and Republicans declaring the announcement as proof that Clinton was about to be indicted, calls came from every side of the political spectrum that he provide more information. But once again, Comey stood firm, telling his employees at the FBI that—shock of shocks—he was right and everyone else was wrong. “There is a significant risk of being misunderstood,” Comey told the bureau employees in the communication, explaining why he was so vague in his letter to Congress. “It would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression.”
Oh, please. As any fifth grader not suffering under the weight of Comey’s ego could know immediately, saying next to nothing created a tremendously misleading impression. The numbers tell the ugly story. According to the prime political statistics site FiveThirtyEight, Clinton’s probability of victory collapsed in the aftermath of Comey’s letter, falling from 85 percent to 65 percent in just a few days. Polls in Senate races changed. And throughout Comey’s week of silence, millions of people cast their votes. I personally know several people who changed their votes because of Comey’s letter—some to Trump but some to Clinton because they thought Comey was engaged in Hoover-like corruption of the FBI.
A huge swath of the public now thinks the FBI is a completely political organization: A large number of Democrats, because of the original letter followed by a week’s worth of leaks from other agents about other investigations, are convinced that the bureau is manipulating the election for the Republicans and cannot be trusted. Meanwhile, plenty of Republicans are arguing that Comey’s newest findings can’t possibly be true and that he caved to pressure from the Democrats. In other words, no matter what side of the political spectrum anyone is on, they agree that the FBI is political.
It’s not. Unfortunately, though, it is led by a man who finally outsmarted himself with his own arrogance. He has done more damage to the reputation of the FBI than any director since the Nixon administration. Comey will, without doubt, be listed as second only to Hoover as the worst director to ever hold the office because of his willingness to abuse his power.
Fixing the damage Comey inflicted on the FBI will take a long time. So long as a man is in charge who thinks he’s always right and cares more his personal reputation than his duty, the repairs cannot begin. Comey must be fired. But let’s wait until November 9http://www.newsweek.com/fbi-director-ja ... ice-517815