Reopened Clinton e-mail investigation: FBI Director Comey should consider resigning (updated November 2 and 3, 2016)

Update: November 3, 2016

See

Andrew Rosenthal op-ed), “James Comey’s Self-Righteous Meddling,” New York Times, November 3, 2016.

One explanation, which I tend to believe, is that Comey, the director of the F.B.I., set out to interfere in the campaign on behalf of the Republican Party, a shocking act that would render him unfit for his powerful office.

The other possible explanation is that he acted out of what you might charitably call a sense of moral rectitude. I think it’s better described as self-righteousness — a dangerous current in modern right-wing politics that has its roots in the rise of the Moral Majority, which aimed to make politics a choice between good values (the right’s) and bad values (the left’s) rather than a competition of ideas.

Certainly, Comey was not acting out of respect for protocol, ethics and procedure.

Rosenthal, observng that the FBI held back on any announcements regarding two other cases, concludes,

Was Comey setting out to change the election results to benefit his own party and its leaders in Congress? Or was he posing as the owner of the moral high ground?

Neither option is comforting. And neither changes the fact that Comey had to know that his actions were not justified by government procedure or lawyerly protocol — and that he was going to throw a huge boulder into the already-roiling waters of American politics.

UPDATE: November 2, 2016

See

Rosalind S. Helderman, Tom Hamburger and Sari Horwitz, “After another release of documents, FBI finds itself caught in a partisan fray,” Washington Post, November 1, 2016 (9:04 PM).

FBI Director James B. Comey’s egregious intervention in the American presidential election on October 28, 2016, by informing Congressional leaders the FBI was reopening the investigation of Hillary Clinton’s e-mails due to newly discovered e-mails (of whose content he was unaware) might have been due to bumbling, following his July statements to Congress that the original investigation was closed.

But the tweet on November 1, 2016 from the FBI, alerting news sources that material on the investigation into Bill Clinton’s pardon of Marc Rich, should not benefit from such a benign interpretation. The explanation that the documents on the FBI website had been automatically added does not pass the smell test, particularly when one bears in mind that Comey as a DOJ prosecutor had led the investigation into the Rich pardon.

Comey, for instance, as a young prosecutor in New York, helped lead the case against Rich. Later, as U.S. attorney, he led the office that handled the investigation into the Clinton pardon from early 2002 to the end of 2003.

Indeed, it was this tweet drawing attention to the fact the documents had been posted to the FBI website that was the smoking gun. One cannot believe for a instant that this particular tweet was not drafted by a human being, or that the sudden reactivation of the Department’s Twitter account on Sunday was the result of some automatic process out of the control of the Director of the FBI.

See Rosalind S. Helderman, Tom Hamburger and Sari Horwitz, above. They report:

The Twitter account used to publicize the Rich files, an official FBI account called­ @FBIRecordsVault, had been dormant for more than a year until Sunday, when it began to tweet links to archived documents. They included records related to Fred Trump, the father of the GOP nominee, which were posted to the website in early October. Those records included eight­ ­pages of largely biographical details about the elder Trump, much of which appeared to be compiled by the FBI in 1988. The agency advertised the Trump records by tweeting: “Fred C. Trump (1905-1999) was a real estate developer and philanthropist.”

Agency officials said the tweets were automatically generated, a function of the website that they said had not been working since last year but that was recently fixed when the site was upgraded.

The FBI has entered the 2016 electoral stage in a big way, which has reversed the momentum of the election and may well throw it to Donald Trump.

James Comey and the FBI have utterly lost the trust of the American people to be independent and above politics.

Even if we were to assume that Comey has some inside information regarding potential criminal activity by Hillary Clinton, he does not have the perogative to bypass the judicial process — where everyone is presumed innocent until proven guilty — to substitute his own moral or legal judgment for that of prosecutors in the Department of Justice and a jury verdict by a court of law.

Comey’s actions have led to a shattering of confidence in the impartial and apoolitical nature and role of the FBI.

He must go. Whether that happens before or after the election will in all likelihood be the result of a political calculation, which may point to a post-election departure.

The FBI actions described here violate the integrity of the presidential electoral process establishd by the Constitution. They cannot be allowed to go unpunished.

***

Original article published on October 28, 2016

See

ADAM GOLDMAN and ALAN RAPPEPORT, “Emails in Anthony Weiner Inquiry Jolt Hillary Clinton’s Campaign, New York Times, October 28, 2016.

Whether merely bumbling and incompetent, or secretly moving to throw the election to the Republicans, FBI Director James B. Comey’s letter to Congressional leaders this morning, October 28, was such an obvious intervention in the U.S. presidential election — in violation of Justice Department guidelines to avoid public actions near an election — that he should consider resigning.

How an FBI Director could announce that he was reopening the investigation of Hillary Clinton’s e-mails, having previously decided there were no legal grounds to prosecute her, and not having reviewed the newly-discovered e-mails in question, without understanding the scandalous impact his decision and communications would be likely to have on the election, defies understanding.

Given the gravity of the intervention in the electoral process, he should consider resigning, or taking other drastic action that might reverse the harm he has done.

His actions appear to represent not only colossal errors in judgment, but also errors which directly undermine the integrity of the electoral process established by the Constitution for the election of the President of the United States.

Let us not forget that David Petraeus was forced to resign only days after the 2012 presidential election, as the result of a call to his boss, James R. Clapper, Director of National Intelligence — late on election day– from someone at the FBI, who revealed that Petraeus had mishandled classified information — a fact which had emerged in an independent investigation. This occurred despite the fact that Petraeus had been notified a month earlier by the FBI that it had concluded its investigation of him and found no grounds to proceed with the matter.

The United States is beginning to look like a Banana Republic, where “House of Cards” rules seem to be at play.

The Trenchant Observer

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The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.