by AARON KLEIN11 May 2017
In an extensive article published last month that included interviews with more than 30 current and former law enforcement officials, congressional officials and other government employees, the New York Times published a stinging indictment of James B. Comey’s handling of the Hillary Clinton email probe.
The Times made the case that Comey violated FBI tradition, bypassed the Justice Department and went rogue on several occasions in a manner that clearly impacted the 2016 presidential election.
In a letter on Tuesday from Deputy Attorney General Rod J. Rosenstein recommending that Comey be fired, Rosenstein specifically cited Comey’s alleged mishandling of the Clinton email probe as justification for Comey’s removal from office.
“I cannot defend the Director’s handling of the conclusion of the investigation of secretary Clinton’s emails,” Rosenstein wrote. “And I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.”
Rosenstein continued: “The Director was wrong to usurp the Attorney General’s authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution. It is not the function of the Director to make such an announcement. At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors.”
That is precisely the case made by the Times’ April 22 article, titled, “Comey Tried to Shield the F.B.I. From Politics. Then He Shaped an Election.”
The Times says that for its article it interviewed “more than 30 current and former law enforcement, congressional and other government officials.”
The newspaper concluded that Comey’s decision to inform Congress that the FBI was reopening the Clinton email probe less than two weeks before the presidential election “violate[ed] the policies of an agency that does not reveal its investigations or do anything that may influence an election.”
The article related that Comey decided to plunge the FBI “into the molten center of a bitter election” in part because he feared “the backlash that would come if it were revealed after the election that the F.B.I. had been investigating the next president and had kept it a secret.”
Failed to seek Lynch recusal
A significant motivating factor for Comey’s rogue approach toward the Clinton email probe, the Times revealed, was his distrust of senior officials at the Justice Department, especially then-Attorney General Loretta E. Lynch, whom, the newspaper reported, “Mr. Comey believed had subtly helped play down the Clinton investigation.”
Indeed, according to the Times, Comey was aware of the existence of a document written by a Democratic operative that allegedly indicated Lynch would have protected Hillary Clinton in the email probe.
The FBI had further information that the alleged Lynch document had been hacked by Russian intelligence, leading Comey to fear that Moscow could leak the document to call into question the independence of the U.S. government’s Clinton email probe, the Times reported.
In his letter from Tuesday, Rosenstein argues that if Comey believed Lynch to be compromised he should have sought her recusal instead of taking matters into his own hands.
“The Director now defends his decision by asserting that he believed Attorney General Lynch had a conflict,” Rosenstein wrote. “But the FBI Director is never empowered to supplant federal prosecutors and assume command of the Justice Department. There is a well-established process for other officials to step in when a conflict requires the recusal of the Attorney General.”
Indeed, according to the Times, after it became clear that the F.B.I. did not discover Clinton emails showing intent to mishandle classified information – the agency believed those emails were among the correspondence deleted by Clinton – Comey made the decision to bypass the Justice Department and explain the case to the public.
The paper reported:
Nine months into the investigation, it became clear to Mr. Comey that Mrs. Clinton was almost certainly not going to face charges. He quietly began work on talking points, toying with the notion that in the midst of a bitter presidential campaign, a Justice Department led by Democrats may not have the credibility to close the case, and that he alone should explain that decision to the public.
Comey’s decision was further fueled by the alleged document written by a Democratic operative hacked by the Russians, a document that in Comey’s view raised “questions about [Lynch’s] independence,” the Times reported.
Instead of seeking Lynch’s recusal, as Rosenstein would later outline as the proper course of action, Comey decided to go at it alone, take matters into his own hands and make his public pronouncements about Clinton’s email case without the Justice Department.
The Times cited former Justice officials as “deeply skeptical” of Comey’s alleged reasoning:
Former Justice Department officials are deeply skeptical of this account. If Mr. Comey believed that Ms. Lynch were compromised, they say, why did he not seek her recusal? Mr. Comey never raised this issue with Ms. Lynch or the deputy attorney general, Sally Q. Yates, former officials said.
Mr. Comey’s defenders regard this as one of the untold stories of the Clinton investigation, one they say helps explain his decision-making. But former Justice Department officials say the F.B.I. never uncovered evidence tying Ms. Lynch to the document’s author, and are convinced that Mr. Comey wanted an excuse to put himself in the spotlight.
Comey’s decision to go rogue was solidified, according to the Times’ account, after Lynch’s infamous tarmac meeting at the Phoenix Sky Harbor International Airport in which former President Bill Clinton, the husband of the FBI’s main subject in a criminal probe, boarded the attorney general’s plane and reportedly stayed there for about twenty minutes.
Yet Comey still did not seek Lynch’s recusal. The Times article related that after the tarmac episode, Comey “knew for sure that when there was something to say about the case, he alone would say it.”
Made legal conclusions
Afterwards, Comey held the press conference at which he criticized Clinton’s private email server as “extremely careless” before finally stating that “no charges are appropriate in this case.”
With his pronouncements, Comey offered judgments and legal conclusions many argue are out of the purview of the FBI, which is charged with documenting the evidence and handing it over to the Justice Department.
The Times cited unnamed “frustrated” prosecutors at the Justice Department complaining that Comey should have first consulted with them.
Went rogue a second time despite FBI tradition
Comey’s injection into the presidential race did not end there. Less than two weeks before the election, the FBI discovered a trove of Clinton emails on the laptop of Anthony Weiner, the estranged husband of long-time top Hillary Clinton aide Huma Abedin. Some of the emails, according to reports, originated on Clinton’s old BlackBerry server that she used before setting up her private home server and some believe may have contained the deleted messages.
Comey’s decision centered on whether to follow FBI tradition and keep quiet about the reopening of the case, or inform Congress about the ongoing investigation, which, the Times related, “everyone acknowledged would create a political furor.”
Eventually, Comey decided to go rogue again and inform Congress.
Lynch was against the decision, the Times reported, and the Justice Department implored the FBI not to impact the presidential campaign in its final days. The Times reported that “even at the F.B.I., agents who supported their high-profile director were stunned.”
“Career prosecutors and political appointees” at the Justice Department quietly criticized not only Comey but Lynch for failing to stop the FBI director, the Times documented.
A chorus of former attorneys general and deputy attorneys general from across the political spectrum publicly criticized Comey’s move. For example, Jamie S. Gorelick, who served as deputy attorney general during the Clinton administration, opined that Comey was “damaging our democracy.”
Writing in the Washington Post on October 29, Gorelick slammed Comey’s decision to so publicly reopen the case just before the election as “antithetical to the interests of justice, putting a thumb on the scale of this election and damaging our democracy.”
Gorelick co-authored the Washington Post opinion piece, titled, “James Comey is damaging our democracy,” with Larry Thompson, who served under the George W. Bush administration as deputy attorney general from 2001 to 2003.
Gorelick’s piece was referenced in Rosenstein’s letter on Tuesday recommending that Comey be fired, writing, “I cannot defend the director’s handling of the conclusion of the investigation of Secretary Clinton’s emails.”
Rosenstein referenced the criticism of Comey from other former attorneys general and deputy attorneys general.
Besides Gorelick’s Post piece, Rosenstein’s letter further outlined:
- Former Attorney General Michael Mukasey, who served under President George W. Bush, observed that the Director stepped far outside his purview in disclosing the recommendation in that fashion “because the FBI director doesn’t make that decision.”
- Alberto Gonzales, who also served as Attorney General under President George W. Bush, called the decision an error in judgment.
- Eric Holder, who served as Deputy Attorney General under President Clinton and Attorney General under President Obama, said that the Director’s decision “was incorrect. It violated long-standing Justice Department policies and traditions.” Holder concluded that the Director broke with these fundamental principles and negatively affected public trust in both the Justice Department and the FBI.
- Donald Ayer, who served as Deputy Attorney General under President George H.W. Bush, along with other former Justice Department officials, was “astonished and perplexed” by the decision to “break with longstanding practices followed by officials of both parties during past elections.”