Blog No. 177. Jim Comey’s Mistakes

No one who has followed Jim Comey’s tenure as Director of the FBI, and his recent interview on ABC, has reason to question his honesty and integrity. In any contest with Donald Trump of the “he said, he said” sort, Comey should be a prohibitive favorite. The attempt to discredit Comey on a website “Lyin’ Comey” sponsored by the Republican National Committee is an embarrassing absurdity.

On the other hand, there have been grounds to question Comey’s judgment on more than one occasion, and the publication of his book with extensive interviews to promote it, may only be the most recent example. In his interview with George Stephanopoulos, Comey explained his decision to write the book in lofty terms:

I was never going to write a book. But I decided I had to write this one to try and be useful. That was my goal after I was fired, to be useful. And it occurred to me maybe I can be useful by offering a view to people, especially to young people, of what leadership should look like and how it should be centered on values.

Perhaps Comey’s book meets that goal, but it does much more and it is the much more that has drawn attention (and, no doubt, greatly increased sales). In the book and accompanying interviews, Comey has launched a highly personal attack on Trump that, however justified, may be ill-advised. Trump has, of course, returned fire from his ever ready Twitter account, and Comey should perhaps have been mindful of the advice against wrestling a pig in the mud: both contestants will get filthy but the pig will enjoy it.

While Comey’s pronouncement that Trump is “morally unfit” echoed similar judgments previously expressed on RINOcracy.com and in numerous other venues, the expression of it by someone in Comey’s particular situation is questionable. Comey was, of course, entitled to defend himself, to enjoy the kind of score-settling often found in memoirs of retired Washington officials and, along the way, to reap the financial rewards. Nevertheless, the timing and tone of the attacks in this case are problematic. In addition to his judgment on Trump’s morality, Comey spiced his narrative with unflattering observations about Trump’s personal appearance. Taken together, they come at some cost. Having been deposed as Director of the FBI, Comey’s most important public service now might be not to instruct the public on leadership and values but, on a more practical level, to be a credible witness for Special Counsel Robert Mueller and in any proceedings that may flow from his investigation. Comey may have undermined his own credibility as a witness by what will appear to many as acute personal animus. In addition, should he be called to appear as a live witness, he will have given cross-examiners a wealth of material to work with. As a contribution to the ongoing political debate, Comey’s attacks may be enjoyed by #NeverTrumpers, but they are unlikely to change many minds among Trump supporters or even the undecided. Indeed, they may be taken by some as adding weight to the bogus claim that the FBI was engaged in some sort of a corrupt conspiracy against Trump.

Furthermore, Comey’s defenses to various criticisms of his past record are not entirely persuasive. In the Stephanopoulos interview, Comey addressed the complaint of not having employed a Grand Jury for the Clinton email investigation:

And to those who say you should’ve brought Hillary Clinton before a grand jury?

JAMES COMEY: Look, I understand why people ask that. We would actually prefer– most people haven’t been in front of a grand jury. We would prefer with a subject of an investigation to do an informal interview. Lot more flexibility there. You can bring a lot more people and have a lot more people involved in the questioning. And it offers us an opportunity in a less formal setting to poke at someone. They’re still required to tell the truth. That’s another thing that gets lost–

There are several problems with Comey’s answer. First, testimony before a Grand Jury would have have involved more witnesses than Hillary Clinton and could have turned up more information—such as the messages on Anthony Weiner’s computer that would later prove so troublesome. Second, an informal interview and testimony before a Grand Jury are not mutually exclusive; it is common to have both. Third, when Hillary Clinton was interviewed, the interview was relatively brief and appeared to have been somewhat perfunctory; moreover, Clinton was even permitted to be accompanied at the interview by two lawyers who had asked for and received immunity for providing information to the FBI.

Even more fundamental is the question of why the determination not to empanel a Grand Jury—and, indeed, responsibility for the course of the entire investigation — was apparently left to Comey and not put in the hands of a senior Justice Department official, preferably a special counsel. The answer, of course, is that the Obama Justice Department had little stomach for anything that might appear so threatening to Clinton, with Attorney General Lynch even insisting that the FBI be described as reviewing a “matter,” rather than conducting an investigation. Comey has said that he was uncomfortable with Lynch’s semantic evasion, but acquiesced in it. Any urging to appoint a special counsel would obviously have been met with massive resistance, but from his position as Director of the FBI, Comey would have had a great deal of leverage had he chosen to exercise it.

The need for a special counsel became apparent more dramatically on July 6, 2016 when Comey made his remarkable and unprecedented statement announcing that, while Clinton had been “extremely careless,” there were no grounds for prosecution. Comey believed that Lynch’s appearance of independence had been compromised by, among other things, her meeting with Bill Clinton on an airport tarmac. Lynch herself had subsequently made the peculiar statement that she would not recuse herself from the investigation, but would follow the recommendations of Comey and “career prosecutors.” At that point, the idea of a special counsel belatedly came to Comey’s mind, but he dismissed it:

Now, what I did think about was, “Should I call for the appointment of a special prosecutor?” Someone outside the normal chain of command who can then take our work and announce it separately from — so I don’t have to do this, can do it separately from me. And I decided that would be brutally unfair to the subject of the investigation, Hillary Clinton. And that’s not a political judgment, that’s an ethical judgment.

Would the appointment of a special counsel have been “brutally unfair” to Clinton? Possibly, but not if the special counsel had then exonerated her. And any unfairness would have been much less had a special counsel been appointed at the outset of the investigation. Finally, one may ask, who were those “career prosecutors” to whom Lynch referred? There does not appear to have ever been any disclosure of their identities. In any case, Comey’s announcement failed to protect the reputation of either the Department of Justice or the FBI as he had apparently hoped it would.

The other principal criticism of Comey’s handling of the Clinton email investigation focused on the FBI’s letter to Congressional committees on October 28, 2016, 11 days before the election, notifying them of Clinton emails found to exist on the computer of Anthony Weiner, husband of Clinton aide, Huma Abedin. Nine days later, only two days before the election, the FBI notified Congress that nothing on the computer changed their previous recommendation against prosecution, but clearly Clinton’s campaign had been seriously damaged. In that situation, Comey was in the exceptionally difficult position of having to decide whether, as he puts it, to either conceal or disclose. The strongest argument for disclosure may have been the fear of a leak from the New York FBI office which had obtained the search warrant for the Weiner computer. Had such a leak occurred, it would have been even more damaging to Clinton and to the FBI and the Department of Justice. Comey has indicated that he advised senior officials of the Justice Department of how he intended to proceed and that, while they expressed disagreement, they did not order him not to make the disclosure and no one sought to meet with him personally to press their disagreement.

Comey’s action has been widely criticized by some Republicans as well as by many Democrats, but the outrage of the latter has dissipated somewhat in light of the current battle between Trump and Comey. Moreover, Democrats’ understandable wrath should also be directed not only at Comey’s colleagues at the Justice Department, but even more at Hillary Clinton, whose “extremely careless” handling of classified email created a self-inflicted wound, and at Huma Abedin, who compounded Clinton’s misconduct by putting her emails on her feckless husband’s computer.

Finally, there is the matter of Comey’s interactions with Trump. Ed Rogers, writing in the Washington Post, argued that “Comey shows that he should never have been FBI Director in the first place.”  Rogers charged Comey with lacking the courage and poise to stand up to Trump. That is a startling accusation to make against a man who is widely seen as well endowed with both qualities, and whose reputation became virtually mythic for the dramatic stand he took in the hospital room of Attorney General John Ashcroft during the Bush administration. Nevertheless, there may be something to Rogers’s claim that Comey should have given a more robust response to Trump’s request for loyalty and his “hope” that with respect to the Flynn investigation, Comey could “let it go.” Rogers argued:

[H]e should have used both instances when he was alone with the president as “teachable moments.” He should have told the president about the FBI’s independence and why it was his in his best interest for him to view the FBI as independent and for the president and the director to keep their relationship formal.

Rogers, however, goes much too far in speculating that Comey’s failure to instruct Trump may have led Trump on. The Trump we all know would have required an exceptionally blunt message to set him straight and there is no reason to believe that he would have accepted such a message.

Comey’s legacy as Director of the FBI is likely to be the subject of debate for years to come and even the “verdict of history” may be a split decision. But to end this blog where it began, whatever mistakes Comey made, in some very complex and difficult circumstances, he has given us no reason to doubt his fidelity to the truth.