What James Comey Did

David Cole is a professor of constitutional law at Georgetown University. He writes a very interesting article in the December issue of the New York Review of Books about James Comey.  He begins saying,

clinton_emails-jpeg-e3722_c0-130-3120-1949_s885x516Whatever else one might say about the just-concluded 2016 presidential election, one thing is certain: FBI Director James Comey played an outsized and exceptionally inappropriate part. His highly prejudicial announcement on October 28, just eleven days before the election, that he had reopened an investigation into Hillary Clinton’s private e-mail server ensured that the final critical days of the campaign were taken up with innuendos and suppositions set off by his action.

Cole goes on to eloquently outline the different procedures and rules Comey violated and the profound impact of his behavior.  Near the end of his article he discusses the Hatch Act.  He argues that Comey did not violate the Hatch Act, but his text suggests otherwise.

Some have argued that Comey violated the Hatch Act in making the renewed investigation public, but I see no evidence to support that charge. The Hatch Act makes it a crime for federal employees to use their “official authority or influence for the purpose of interfering with or affecting the result of an election.” Comey’s October 28 announcement certainly affected the results of the 2016 election, but there is no evidence that he took his action for that purpose, and absent such a motive, the Hatch Act is not implicated….

Comey was no doubt worried that, had he not informed Congress of the new evidence, and had it come out after the election that he had kept it quiet—and assuming the e-mails were of any importance—he might have been subject to criticism from his own Republican Party and from Donald Trump. But such criticism is one of the burdens a responsible government official must bear. Following the rules was the right thing to do, even if it might have come at some cost to Comey’s reputation in his own party. By elevating his concern about his reputation above the rules, Comey will forever be remembered as the FBI director who abused the power of his office to interfere baselessly in an imminent presidential election.

The reason Comey would have been subject to criticism from his own Republican Party and from Donald Trump if he did not send his letter to congress before the election is because the party and Trump would not benefit from the affect of the announcement at the polls.  Coles suggests that Comey was “no doubt” motivated by avoiding this criticism when he made his decision about sending the letter.  He could only avoid this criticism by sending the letter before the election when it could affect “the result.”  If Comey was motivated by avoiding the criticism of the Republican party and Trump, then he intended to affect the election as a way of avoiding this criticism.

The evidence we have that Comey made his announcement in part to affect the election is the timing of his announcement: 11 days before the election.  This is so close to the election it would have been easy for Comey to wait until after the election.  It would have only required waiting 12 days.  The public has not been provided any legal or procedural reason for not waiting until after the election.  The Hatch Act actually provides a legal reason to wait until after the election.  The fact that Comey decided to make his announcement 11 days before the election without any legal or procedural justification is itself evidence that Comey intended to influence the election with his announcement.  If he didn’t intend to influence the election he would have waited 12 days.

I think Cole is right about Comey’s motivation.  He was trying to avoid the criticism of his colleagues in the Republican Party and Trump.   And I believe this is evidence he violated the Hatch Act.

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