A thumb on the scale

Our view: FBI di­rec­tor adds no facts but plenty of in­nu­endo to the Clin­ton email story, vi­o­lat­ing long-stand­ing poli­cies to keep law en­force­ment out of pol­i­tics

Baltimore Sun - - FROM PAGE ONE -

Here is what we know about the re­cent de­vel­op­ments re­lated to the FBI’s in­ves­ti­gaiton into Hil­lary Clin­ton’s use of a pri­vate email server while she was sec­re­tary of state. Af­ter an ex­haus­tive in­ves­ti­ga­tion, the bureau con­cluded that although her email ar­range­ment was risky and ut­terly fool­ish, it was not the sort of case that would be pros­e­cuted, whether the per­son in­volved was a low-level bu­reau­crat or a can­di­date for pres­i­dent. Sub­se­quently, in an un­re­lated in­ves­ti­ga­tion, the FBI found mes­sages from Ms. Clin­ton on the lap­top of the hus­band of one of her top aides, and, less than two weeks be­fore the elec­tion, FBI Di­rec­tor James Comey de­cided to in­form Congress of that fact.

Here is what we don’t know. We don’t know how many of the mes­sages were from the pe­riod cov­ered by the FBI in­ves­ti­ga­tion. We don’t know whether any con­tained clas­si­fied in­for­ma­tion, and, if so, whether they were ma­te­ri­ally dif­fer­ent in any re­spect from the mes­sages marked clas­si­fied that the FBI had al­ready found in its ex­am­i­na­tion of Ms. Clin­ton’s server. We don’t know how many of the mes­sages are du­pli­cates of emails the bureau had al­ready found dur­ing its pre­vi­ous in­ves­ti­ga­tion. We don’t even know how many were ac­tu­ally from Ms. Clin­ton.

The rea­son we don’t know any of these things — what you might call the most per­ti­nent facts when it comes to Amer­i­cans’ ef­forts to make sense of this lat­est rev­e­la­tion be­fore they vote — is be­cause the FBI doesn’t know. Of­fi­cials only re­cently sought le­gal per­mis­sion to ex­am­ine the emails and have not yet re­ceived it, mean­ing agents had not be­gun read­ing them be­fore Mr. Comey sent his let­ter to Congress. Nor is there any re­al­is­tic pos­si­b­lity that they will com­plete the in­ves­ti­ga­tion be­fore the elec­tion.

What Mr. Comey’s let­ter amounts to, then, is re­leas­ing highly prej­u­di­cial in­for­ma­tion about an in­ves­ti­ga­tion with­out any fac­tual ba­sis for sus­pi­cion that a crime has been com­mit­ted. The only con­ceiv­able rea­son for do­ing so when and how he did was that he has faced in­tense crit­i­cism from Repub­li­cans for his de­ci­sion this sum­mer to rec­om­mend against charg­ing Ms. Clin­ton and a fear that he, per­son­ally, would be crit­i­cized again. In a mis­guided at­tempt to pro­tect his own rep­u­ta­tion, he vi­o­lated two of the Jus­tice Depart­ment’s car­di­nal rules: Don’t com­ment on on­go­ing in­ves­ti­ga­tions and don’t al­low even the ap­pear­ance of in­ter­fer­ing in the elec­toral process.

Call the FBI and ask about any in­ves­ti­ga­tion, from rou­tine tax fraud up to ques­tions about whether Don­ald Trump aides have ties to Rus­sian hack­ers try­ing to in­flu­ence the elec­tion, and you’ll get the same an­swer: The FBI does not com­ment on on­go­ing in­ves­ti­ga­tions. That’s an enor­mously im­por­tant rule be­cause it pre­vents the gov­ern­ment from us­ing its pow­ers to ef­fec­tively con­vict peo­ple in the pub­lic eye who would never even face charges in court. The ex­tent of the in­for­ma­tion Mr. Comey FBI Di­rec­tor James Comey ig­nored long-stand­ing poli­cies with his de­ci­sion to tell Congress about newly dis­cov­ered mes­sages re­lated to the in­ves­ti­ga­tion into Hil­lary Clin­ton’s email server. pro­vided about this case al­ready, in pub­lic state­ments and Con­gres­sional tes­ti­mony, is highly un­usual. FBI direc­tors don’t typ­i­cally go around pro­vid­ing their per­sonal opin­ions about the con­duct of peo­ple against whom they rec­om­mend no charges. But when giv­ing his tes­ti­mony this sum­mer, he was at least speak­ing from some­thing re­sem­bling a com­plete set of facts and was do­ing so be­fore Ms. Clin­ton had for­mally been nom­i­nated by the Demo­cratic party.

To be clear, we con­sider Ms. Clin­ton’s use of a home email server for of­fi­cial busi­ness while she was sec­re­tary of state to have been care­less, fool­ish and reck­less. For some­one who was likely to make an­other run for pres­i­dent, it was down­right stupid. What­ever she thought she was gain­ing in terms of con­ve­nience — or, more likely, in terms of pro­tect­ing her pri­vacy from pub­lic in­for­ma­tion re­quests — was not re­motely worth the risk her choice en­tailed.

If Mr. Comey had new in­for­ma­tion that ma­te­ri­ally changed what was known about Ms. Clin­ton’s email, or even a re­al­is­tic be­lief that such in­for­ma­tion could be forth­com­ing be­fore the elec­tion, there might have been some jus­ti­fi­ca­tion for him to have shared it with the pub­lic, FBI poli­cies and prac­tices not­with­stand­ing. But what the FBI dis­cov­ered and Mr. Comey felt com­pelled to share with Congress — and, hence, the en­tire elec­torate — adds noth­ing to the le­gal or pol­icy im­pli­ca­tions of the story. It only changes the pol­i­tics in a way that is en­tirely pre­dictable. How­ever he jus­ti­fies his ac­tions, one of the most pow­er­ful law en­force­ment of­fi­cials in the coun­try has put his thumb on the scale of this elec­tion. That’s not some­thing we do in this coun­try.


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