Bob Rae on FBI direc­tor Comey’s bad judg­ment,

Toronto Star - - FRONT PAGE - BOB RAE

Cana­di­ans will re­call the bizarre de­ci­sion of RCMP Com­mis­sioner Gi­u­liano Zac­cardelli to re­spond pub­licly to an open let­ter he re­ceived from an NDP mem­ber of Par­lia­ment in the mid­dle of the 2005-06 elec­tion cam­paign.

Why bizarre? Be­cause it’s a long-stand­ing pol­icy of both po­lice agen­cies and their po­lit­i­cal bosses never to com­ment on the na­ture or even the ex­is­tence of their in­ves­ti­ga­tions.

The po­lice and many oth­ers re­ceive in­for­ma­tion all the time — tips, let­ters, com­plaints, you name it. They have an obli­ga­tion to fol­low up, but very few of these re­sult in charges, and of­ten the peo­ple named in a com­plaint are found to be en­tirely in­no­cent of any wrong­do­ing. It would be grossly un­fair to make a pub­lic an­nounce­ment of every com­plaint or al­le­ga­tion.

In the Martin/Harper elec­tion, the for­mal an­nounce­ment of an in­ves­ti­ga­tion into whether some­one used in­side in­for­ma­tion to ben­e­fit fi­nan­cially caused an im­me­di­ate shift in the polls to the Con­ser­va­tives.

Ralph Goodale faced the em­bar­rass­ment of a visit from the RCMP in the mid­dle of his cam­paign at his cam­paign of­fice in Regina. Goodale, his staff, the PMO, were all cleared of any wrong­do­ing and even­tu­ally a pub­lic ser­vant was charged. But the dam­age was done and it gave the Con­ser­va­tives a toe­hold in govern­ment that was ex­tended by elec­tion wins in 2008 and 2011.

Zac­cardelli was rightly crit­i­cized, but af­ter the Harper win he soon moved on to a new job at In­ter­pol in France.

The de­ci­sion of FBI Direc­tor James Comey to write Congress two weeks ago that the FBI was re­view­ing “new in­for­ma­tion” about Hil­lary Clin­ton’s emails had a dra­matic ef­fect on the pres­i­den­tial cam­paign — and has changed the tenor and tone of the fi­nal days. On the Sun­day be­fore the elec­tion, he wrote an­other let­ter say­ing the “re­view” would not lead to any charges against Sec­re­tary Clin­ton.

There will be many the­o­ries about this, but based on per­sonal ex­pe­ri­ence I have de­vel­oped a ba­sic rule in an­a­lyz­ing de­ci­sions. When faced with a choice be­tween a con­spir­acy and a screw-up in ex­plain­ing a bizarre de­ci­sion, pick the screw-up every time.

I don’t be­lieve Zac­cardelli or Comey de­lib­er­ately in­ter­vened to af­fect the out­come of an elec­tion. But I do be­lieve they made mis­takes in judg­ment — how­ever mo­ti­vated — that un­fairly af­fected highly charged elec­tions.

To sug­gest that trans­parency re­quired them to share in­for­ma­tion about an in­ves­ti­ga­tion with the pub­lic is sim­ply un­true — in fact quite the op­po­site. The in­tegrity of in­ves­ti­ga­tions of­ten re­quires that their very ex­is­tence re­mains un­known.

Based on many dif­fer­ent re­ports, it is clear many in the FBI bear a per­sonal an­i­mus against Hil­lary Clin­ton. James Comey him­self was coun­sel to a Se­nate White­wa­ter in­ves­ti­ga­tion as well as a Ge­orge W. Bush-ap­pointed “re­viewer” of pres­i­dent Bill Clin­ton’s de­ci­sion to par­don Marc Rich.

Rudy Gi­u­liani, who has be­come an out­spo­ken ad­vo­cate of Don­ald Trump, said he re­ceived in­for­ma­tion about the emails dis­cov­ered on An­thony Weiner’s com­puter. Comey may have felt pushed to go pub­lic by his in­abil­ity to con­trol his own or­ga­ni­za­tion’s be­hav­iour. This raises is­sues about the in­tegrity of polic­ing and law en­force­ment.

The last-minute let­ter from Comey that Clin­ton won’t be charged comes too late to undo the dam­age caused by the first blun­der and only raises fur­ther ques­tions that guar­an­tee his de­par­ture from of­fice. It is sim­ply not pos­si­ble to have con­fi­dence in his judg­ment.

About a quar­ter of the pre­dicted elec­torate has al­ready voted — some di­rectly af­fected by the 10-day “in­ves­ti­ga­tion” — and the news that Hil­lary Clin­ton has been “cleared” may or may not af­fect the choices of the 100 mil­lion ex­pected to vote on elec­tion day.

But the em­bit­tered and di­vided na­ture of the Amer­i­can polity has been fur­ther soured by the way this has been han­dled and only fu­els the con­spir­acy the­o­ries that now in­fect so­cial me­dia on a min­uteby-minute ba­sis.

What­ever hap­pens on Tues­day, peo­ple will be talk­ing about this one for a long time.

To sug­gest that trans­parency re­quired the FBI to share in­for­ma­tion about an in­ves­ti­ga­tion with the pub­lic is sim­ply un­true — in fact quite the op­po­site


Af­ter FBI Direc­tor James Comey’s mis­take, it is sim­ply not pos­si­ble to have con­fi­dence in his judg­ment, Bob Rae writes.

Bob Rae is a part­ner at Olthuis Kleer Town­shend LLP and teaches at the Univer­sity of Toronto.

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