Don't blame Comey for this mess

Story highlights

  • Page Pate says James Comey is being unfairly blamed for his handling of the Hillary Clinton email investigation.
  • In this kind of highly charged case, the FBI needs to be thorough, diligent and transparent, he says

Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate The opinions expressed in this commentary are his.

(CNN)James Comey is not primarily responsible for the political mess caused by the recent discovery of more emails that may be relevant to the investigation of Hillary Clinton's use of a private email server. These newly uncovered emails were not written, sent or received by Comey. He didn't store them on his computer, and it wasn't his fault that they were not reviewed many months ago during the initial investigation. In fact, Comey never even knew these emails existed until now.

Page Pate
That's the problem. Neither Comey nor the FBI had the opportunity to review these emails before making the decision not to charge Hillary Clinton. Discovering them now, so close to the election, has caused a political maelstrom that may pose a problem for Hillary Clinton's apparently smooth ride to victory in the last days of this campaign. But this problem wasn't created by Comey. The FBI found new information that's potentially relevant to the investigation we all thought was over. Now someone has to deal with this information, and that job belongs to James Comey.
    Comey's bosses at the Justice Department reportedly disagreed with him that he should send the letter to Congress about the discovery of the emails, and they think his actions may violate department policies. Two former deputy attorney generals have said his actions are "damaging our democracy." CNN Legal Analyst Paul Callan wrote that Comey has "forgotten how to conduct a proper investigation" and should resign. While I have great respect for Paul Callan, Jamie Gorelick, Larry Thompson, and the current Justice Department leadership, I don't think James Comey is really the villain in this political drama.
    I can't imagine that Comey wanted these emails to pop up now. I am sure he would have preferred that he and his team had access to these emails during the initial investigation many months ago when the FBI was interviewing top-level Clinton staffers. But these emails, for whatever reason, were not provided to the investigators then and were only discovered during a separate, presumably unrelated, investigation. Comey didn't go looking for new information, it came to him.
    And what was Comey supposed to do with this new, potentially relevant information? Ignore it? Tell his staff he would look into it later, when it was more politically and personally convenient to do so? No, I think the obvious answer is that he had to deal with this information the minute it was brought to his attention. That's what he did.
    With this new information, it appears that Comey and the FBI are moving as quickly as possible to determine whether these emails are material to the earlier investigation. The Justice Department obtained a search warrant over the weekend that will allow a closer inspection and analysis of the emails and the device they were stored on. How long that process will take is still anyone's guess. (CNN reported that FBI officials learned of the emails weeks ago; it remains to be determined why their existence wasn't announced before Friday.)
    Once Comey made the decision that he needed to look into these emails, was he supposed to keep it a secret? Perhaps that would have been consistent with department policy in a traditional investigation, but this investigation has been anything but traditional. Having publicly stated in June that the investigation of Hillary Clinton's email server was complete, it makes perfect sense that he would want to let Congress know he was just made aware of previously undiscovered evidence that may be relevant to that investigation. Although this development doesn't make his earlier testimony before Congress untruthful, it is certainly inconsistent with it.

    FBI needs to be thorough

    We want the FBI to be thorough and diligent. And, especially when the investigation involves someone who is potentially the next president, we want to make sure the process is both fair and transparent. That's what I think Comey is trying to do.
    To be clear, I don't think Comey had to send that letter to Congress. There was no need to "supplement" his previous testimony. The testimony he gave to Congress that the investigation was complete was certainly accurate at the time. He was under no legal or ethical obligation to supplement, amend or otherwise change his testimony based on the recent discovery of these emails. What he said in September was accurate when he said it. Looking into these newly discovered emails now doesn't change the truthfulness of his earlier statements to Congress.
    Many people have criticized Comney's "reopening" of a "closed investigation." I don't think that's an accurate description of what's happening. There is an important difference between "complete" and "closed" in this context. In my experience, federal criminal investigations are never really closed until the statute of limitations runs out and there is no more time to legally bring criminal charges against someone. While the Clinton investigation may have been "complete" in July, it was always subject to being revisited if new information was discovered. That's exactly what happened last week.

    Transparency

    While I don't think Comey had to send that letter, I completely understand why he did. He decided, correctly in my opinion, to let the American public know why he had opted not to recommend charges against Clinton. He subjected himself to lengthy, aggressive questioning from both friendly and hostile politicians when he appeared before Congress to defend his decision not to charge her. During his sworn testimony, he made it clear the investigation was over. Now that it appears there may be other information to consider, it is entirely reasonable for him to let Congress know about it.
    Ultimately, I don't think these emails will amount to anything significant. Even if there is classified information contained in these emails, I don't expect it will be enough to bring criminal charges against Clinton or her longtime close aide, Huma Abedin. While I am much more troubled by the fact these emails were not voluntarily disclosed earlier, I doubt there is a strong case for obstruction of justice. But that doesn't mean the FBI shouldn't do its job and look into them. If the emails are as voluminous as we have been told, that is going to take some time. The review won't, and shouldn't, be complete before the election.
    I think we need to take a step back and acknowledge that, if anyone is to blame for this mess, it is Hillary Clinton and her staff. Had she been as diligent about following the proper procedures as she was about protecting her personal privacy, then none of this would be an issue and she might be on her way to winning the presidency in a landslide.
    Not only was her use of that private email server "extremely careless," but her cooperation in the ensuing investigation also seems reluctant at best, obstructive at worst. Once Clinton became aware of the nature of this investigation, she should have done everything humanly possible to get any potentially relevant information produced to Comey and his team for a thorough review. That would include asking Abedin to check for emails at home.
    Whatever Clinton's reasons, she and her staff either did a poor job of looking for all their emails or they didn't really look at all. Emails were not disclosed, some were even destroyed. And now, some additional potentially relevant emails were only uncovered due to a separate criminal investigation into Abedin's estranged husband's sexting activities.
    Had the FBI had these emails earlier, they would have already been carefully reviewed and likely discarded as not being material to the investigation or not significant enough to change Comey's decision not to recommend prosecution. There would be nothing new to see here, and no political crisis for the Clinton campaign.

    Conflicted

    I was skeptical when I first heard that the final decision to bring criminal charges would be left to Comey. It's not that I questioned his ability to make that decision, or that I thought he would try to cover anything up to help Hillary Clinton. I knew he would act impartially, guided by the law and the best interests of the country. But I also knew that having him make the final decision would put him in the center of a political controversy that would have been best avoided by the appointment of a special prosecutor.
    James Comey is the director of the FBI. As head of the FBI, he is employed by the Justice Department. This is the same Justice Department that is run by Loretta Lynch, who previously decided to step aside and leave the final decision about prosecuting Clinton to Comey, her subordinate. There was no prosecutor tasked with reviewing the FBI's work on this case and making the final decision about bringing criminal charges. Instead, it was all left up to Comey.
    Comey works for Lynch, Lynch works for the President, and the President is an outspoken supporter of Hillary Clinton, the focus of the investigation. If there was ever a case that cried out for a special prosecutor, this would be it.
    Of course, it hardly looks like Comey is favoring Clinton right now. Dredging up the email investigation so close to the election obviously helps Donald Trump's flailing campaign and bolsters other Clinton critics. But this is a consequence of factors outside the control of James Comey.
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    For him to have sat on this information to avoid a potential political controversy would have been wrong. Yes, it is against department policy to comment on pending investigations, especially so close to an election. But this has never been an investigation conducted according to policy.
    I think Jim Comey is doing his job, and doing it well. From everything I know it appears he is putting the best interests of his country above his own. It must have been obvious to him that his decision not to recommend criminal charges against Clinton would cause outrage among many Republicans. It must have also been obvious to him that his comments about Clinton being "extremely careless" would cause much heartburn among Democrats. But he did what he thought was right, regardless of the political consequences.
    Jim Comey may not have a friend left in Washington after all this is over, but the rest of America owes him our thanks.