Investigation anxiety at the Washington Post

“Comey’s decision contrary to policy,” shrieked the lead headline in today’s Washington Post (paper edition; online headline is similar). But what policy did Comey violate?

At the very end of their article Post writers Sari Horowitz, Tom Hamburger and Ellen Nakashima cite a 2012 Justice Department memo by Eric Holder. It states that employees “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.” If anything, it seems to me that Comey has been too sensitive about playing the Clinton investigation down the middle, giving something to both sides in the election.

Holder’s memo went on to say that if an employee faces “a question regarding the timing of charges or overt investigative steps near the time of a primary or general election,” he should contact the department’s public integrity section “for further guidance.” Comey reportedly did seek guidance from top Justice Department officials (I’m not sure about the public integrity section). As one Justice Department official told the Post, “Director Comey understood our position; he heard it from Justice leadership.”

Thus, Comey appears not to have violated Justice Department policy as set forth in the Holder memo.

Elsewhere in the article, the Post, quoting Justice Department officials, characterizes DOJ policy this way: “We don’t comment on an ongoing investigation and we don’t take steps that will be viewed as influencing an election.”

But the Post cites no such written policy. Nor can such a policy be inferred from consistent past practice.

The prosecution of Sen. Ted Stevens — found to be without merit and, indeed, abusive by a federal judge — influenced the Senator’s election (he lost a close one). Comey’s statement this summer that Hillary Clinton would not be charged was viewed, correctly, as influencing the election. (I didn’t hear anyone complain that Comey announced that decision, though there were complaints about the decision he announced, as well as his lengthy summary of the evidence). Comey’s decision to investigate Clinton in the first place also had the potential to influence the election.

I don’t see how enforcement of the laws against political corruption could proceed if it were DOJ policy not to “take steps that will be viewed as influencing an election.”

As for commenting on an ongoing investigation, it’s obviously a good practice not to. However, Comey did not really discuss his renewed investigation in his letter to Congress. In essence, he simply informed Congress that the investigation has been renewed. Such notification corrected Comey’s prior statement to Congress that the investigation was completed. Is it Justice Department policy to refuse to correct answers to Congress?

It’s also worth noting that the Clinton campaign (as well as Trump’s) is publicly pushing for Comey to comment on an ongoing investigation. John Podesta has done so. So, as the Post’s article notes, have four Democratic Senators (Leahy, Feinstein, Carper, Cardin). They are asking Loretta Lynch and Comey to provide by Monday more details about the investigative steps the FBI is taking, the number of emails involved, and so forth.

In any case, the Post fails to show that Comey’s latest action are “contrary to policy.”

I understand why the Post is upset. I’d be shrieking too if a candidate I favored who had been determined not to have broken the law were made the subject of a renewed investigation less than two weeks before an election.

But shrieking isn’t the same thing as making a persuasive argument. If new evidence justifies reopening the Clinton email investigation — I don’t see how anyone on the outside can say yet whether it does or doesn’t — then Comey was right to reopen it. And having reopened it, I think he needed to let Congress know. Indeed, I would say that, after publicly announcing there would be no prosecution, he needed to let the American people know that there might.

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