Comey Is Aiding the Smear Campaign Against Hillary

FBI Director James Comey testifies before the House Oversight and Government Reform Committee in Washington DC, July 7, 2016. John Dean writes that Comey has provided new material for Republican efforts to “Nixonize” Clinton by inventing scandals for their base and the gullible. Gary Cameron/reuters

This article first appeared on the Justia site.

Unless you have been in hibernation, you are not likely totally ignorant of the flak flying regarding the investigations of Hillary Clinton's emails. Nonetheless, let me briefly recap the activities of FBI Director James Comey, and where he appears to be headed next. (He has some 2,000 days remaining in office, and with another FBI investigation will likely determine who will be the next president of the United States.)

A little over a year ago, the FBI entered this partisan fray initiated by Republicans in the House of Representatives when investigating anything and everything about Democratic presidential candidate Hillary Clinton. Indeed, House GOP leader Kevin McCarthy acknowledged they are trying to bring down her presidential bid, and they have effectively lowered her poll numbers—and are still pursuing her.

The putative nonpartisan FBI enthusiastically joined this partisan undertaking based on a referral from the intelligence community inspector general (IC IG), an officer who is accountable to the Congress, which is, of course, controlled by Republicans.

It was the IC IG who sent the matter to the Department of Justice and the FBI. While it was not a criminal referral, the FBI clearly decided from the outset to make it a major criminal investigation. This had to be a decision of FBI Director Comey, who sent the bureau into a criminal investigation that in the end was a bust.

Now the director is busy doing what not even his infamous predecessor J. Edgar Hoover personally did during his troubled tenure (Hoover had others do such dirty deeds, usually through leaks): Comey is politically and publicly taking part in an unprecedented partisan attack campaign on Hillary Clinton.

I cannot imagine other post-Hoover directors, say Clarence Kelley or Bill Webster, ever thrusting themselves and the FBI into a presidential campaign in this fashion.

Donald Trump is wrong. The system is not rigged to protect Hillary. Rather, it appears that the FBI was very disappointed they found no criminal case against Hillary.

If Trump thinks that no one in the FBI or the Justice Department would be screaming and threatening resignation and leaking like a sieve to the media if there had been a criminal case, he is woefully too ignorant of Washington's ways to be running for president.

But the fact that there was no criminal case has not ended the matter for the FBI, which usually shares this information privately with the Justice Department.

First, Comey read a statement about the FBI's email investigation of Hillary that was misleading, distorted and incomplete and (according to the State Department, as noted by the Clinton campaign) even had false statements during his nationally televised press briefing on July 5.

Then he volunteered to testify on July 7 before the House Oversight Committee—the source of most of the Hillary witch-hunting investigations—where he cleared up some of the confusion in his earlier statement, but added new muddle by providing the committee with new grounds for further investigations.

Comey's July 5 Statement on the Hillary Investigation

Director Comey's press briefing on the investigation of Hillary's email was staged for television cameras and to place the FBI in the spotlight. Comey announced he would explain the nature of the FBI's investigation, what they found and then their recommendation.

The media and public really only wanted to know one thing: Did they find Hillary had committed a crime, and were they recommending prosecution? Comey made clear he would take no questions; rather, he simply read his 2,000-plus-word statement, advising that he had not informed the Justice Department, for whom he works, of this information.

According to Comey's statement, the FBI focused on only two statutes, or as the director stated it: "Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on [Secretary Clinton's] personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities."

Comey did not further identify the statutes, but they are 18 USC 793(f) and 18 USC 1924. In fact, the statement is remarkably silent on details.

The broad brush with which Comey explained what the FBI looked at, as well as what they found, gave the impression while being read that he was holding back because the FBI would recommend that the former secretary of state, and a number of her staff members, would be indicted and prosecuted.

Accordingly, it seemed he was giving just enough general information to establish the solid basis for criminal proceedings but not disclosing information that could prejudice the case.

But as he concluded his findings, he stated: "Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."

In addressing the recommendation, he added, "Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case." (Emphasis added.)

While this was undoubtedly good news for Hillary and her staff, given the vague nature of the charges Comey was making, without clarifying who had done what, it was a statement that Republicans found greatly disappointing and confusing.

In fact, it was not clear what Hillary actually did vis-à-vis her staff. It was unclear how many emails were classified before the investigation, and unclear if Hillary or her attorneys decided which emails were personal and should be deleted.

While Comey speculated this email system could have been hacked, it was not clear if that had or had not actually happened. Nor was it clear why he was not recommending prosecution, other than saying no reasonable prosecutor would do so.

Within hours of making his statement, Comey was on the telephone with the chairman of the House Oversight Committee, who was seeking clarifications and asking Comey to testify before his committee ASAP. Comey agreed to appear less than 48 hours later.

Comey's July 7 Appearance Before the House Oversight Committee

Director Comey appeared before the House Oversight Committee on July 7, which provided an opportunity to clarify some of the fuzzy information in his statement, and probably most important, explain that the FBI did not fix the case for political reasons.

While many Republicans, who only days before had been Comey's biggest fans, expressed dismay at his bad judgment in not recommending indictment of Hillary and her staff, they had no information with which they could challenge his judgment.

Comey explained, case by case, why Hillary's situation was different from both high-profile and no-profile people who had been charged and convicted under 18 USC 793(f) and 18 USC 1924, putting to rest the claims of Republicans that others had done less and been criminally charged.

But he did not bring any factual details with him, so the committee has requested all such information the FBI will provide. He has provided information in the past, so he will have to provide something, which will result in new leaks from the committee in the coming weeks and months of the presidential campaign.

Because only a few members of congressional committees are good at asking questions, and they are limited to five minutes to ask their questions—as well as the fact that Republicans wanted to score political points by attacking Comey and Hillary or elicit additional negative information about Hillary, while Democrats wanted to bolster the director's decision not to prosecute and try to clarify that Hillary had not done all the terrible things Republicans were claiming—the hearings were a total hodgepodge of information.

Suffice it to say both the Trump campaign and the Clinton campaign will find video clips of Jim Comey they can use in the coming months.

So where does this leave Hillary? And what, if anything, does it mean for Trump?

This is not good for Hillary. While she was not prosecutable, the FBI's investigation is being spread on the public record. This is unprecedented, except for Watergate, when Assistant FBI Director Mark Felt—the disgruntled want-to-be director when Hoover died—leaked information about the Watergate investigation to the news media, and Congress later sought much of the FBI's investigation, which they made public.

Comey has provided new material for the Republican efforts to "Nixonize" Hillary, notwithstanding they can only do this by inventing scandals for their base and the gullible.

The biggest new thing that Comey's July 5 statement and his July 7 appearance before the House Oversight Committee has provided the GOP is the new question: Did Hillary lie about her use of a private email service, either while campaigning or when testifying before the House Benghazi Committee?

Comey could not, or did not wish to, put this question to rest. Rather, he was not clear what Hillary had been asked during her three-hour-plus FBI interview, and he said the FBI would have no jurisdiction to investigate what she had said while campaigning.

But the director all but invited the House of Representatives to send him a referral if they wanted the FBI to investigate whether or not Hillary had committed perjury during her sworn testimony before the Benghazi Committee. It is in the works as I write.

It will be shocking if the Republican-controlled House does not follow up and send a request for another Hillary investigation, which means Donald Trump will take the investigation to mean Hillary is guilty of perjury, so she is unqualified to be president.

Comey also hinted that the Clinton Foundation might be under investigation. And the State Department has reopened its investigation of Hillary's emails, although they can prosecute no one.

A perjury investigation, if undertaken, will again hang heavy over Hillary's campaign. If Hillary Clinton is not the next president of the United States, it will not be because Donald Trump proved himself a great candidate, for clearly that is not the case. Rather, it will be because James Comey, director of the FBI, has become Hillary's Inspector Javert, a modern-day character out of Les Misérables.

He has been investigating the Clintons since "Whitewater" and the Marc Rich pardon. Comey may not have had a prosecutable case against her regarding her private email activity as secretary of state, and he does not likely have a perjury case against her regarding her congressional testimony, for they are both very difficult to prove, but he does have another investigation—which could likely last until after the November election.

Between Election Day and her inauguration, Comey may be issuing another statement about his latest Hillary investigation. And if he waits until after January 20, 2017, when she is president and Republicans still control the House, we could have another Clinton impeachment.

Republicans have given Hillary a James Comey nightmare.

John Dean, a Justia columnist, was White House counsel to President Richard Nixon.