FBI head Comey and the 2016 election: Echoes of J. Edgar Hoover

Professor Douglas M. Charles wrote an article for Yahoo News entitled “FBI head Comey and the 2016 election: Echoes of J. Edgar Hoover.  The parallels between Comey’s behavior during the election and Hoover are also the subject of an article in the New York Times. Charles is an associate professor of history at Penn State University’s Greater Allegheny campus. He is the author of Hoover’s War on Gays: Exposing the FBI’s “Sex Deviates” Program, The FBI’s Obscene File: J. Edgar Hoover & the Bureau’s Crusade Against Smut, and J. Edgar Hoover & the Anti-interventionists: FBI Political Surveillance and the Rise of the Domestic Security State, 1939-1945.  Charles makes a number of points worth considering.

This was a close election.

The election of 2016 was a close one, and one of only five elections in U.S. history in which the victor lost the popular vote but won the Electoral College. As things now stand, Clinton appears to be on track to win a significant popular-vote margin. A week after Election Day, her lead had passed 1 million, the largest margin ever for a candidate who lost the electoral vote. Trump won the key states of Michigan, Pennsylvania and Wisconsin by a percentage point or less; a shift of a little more than 100,000 votes among the three would have given the presidency to Clinton.

J. Edgar Hoover used his power to undermine political enemies, but he never commented on ongoing investigations.

a19982bffc38f319ca8a2673acf53765Hoover was always careful not to comment publicly on ongoing investigations. In 1965, a mother and teacher in Michigan wrote to ask Hoover to investigate the rumor that the pop song “Louie, Louie” contained obscenities in its (virtually indecipherable) lyrics. While the FBI was indeed investigating — obscenity and pornography being among Hoover’s personal obsessions — the director nevertheless replied very clearly that he was unable to comment about FBI probes.

Comey has a history of clashes with the Clinton’s and this history appears to have affected the behavior of the FBI.

Comey is a Republican who has a history of clashes with Bill and Hillary Clinton. He worked as a special counsel in the 1990s for the Senate Whitewater committee investigating the Clintons’ real estate deals. In the course of that heavily politicized investigation, Comey and the committee came to some definite conclusions about Hillary Clinton: that she was uncooperative and not forthcoming with documents. Comey was subsequently appointed U.S. attorney for the Southern District of New York. When President Clinton pardoned the financier Marc Rich in the last days of his presidency, Comey — who had worked earlier on the Rich tax-evasion case, trying to return the fugitive from Switzerland — described the pardon as “shocking.” Comey then opened an investigation into whether Rich and others on his behalf had donated money to the Clinton presidential library and to Hillary Clinton’s Senate campaign, but found no wrongdoing. When reporters asked about this, Comey, revealingly, said he could not comment, as no charges were brought. But this year, with the power and independence he wields as director of the FBI, he volunteered his damaging assessment. It is hard to escape the conclusion that he holds some underlying negative perceptions or political bias about the Clintons shaped by his experience with them.

Comey’s investigation into the Rich pardon is particularly telling.  One week before the election, the FBI released to the public on a twitter feed heavily redacted files from its 2001 investigation of President Bill Clinton’s pardon of Marc Rich.  The first attempt to provide an explanation for this release used the term “automatic” repeatedly and referred to several layers of procedure and law, but it provided no explanation for why the twitter feed was fixed one week before the election after being down for a year.

The second attempt at an explanation said the release was the product of a “computer glitch.”  It provides no explanation for why this “computer glitch” was not mentioned in the first explanation.  It also provides no explanation for how a “computer glitch” can fix a twitter feed that has been down for a year.

If Comey was unable to comment on the Rich case because no charges were brought, it is obviously inappropriate for the FBI to release information about the case now.   Since the information was released one week before an election, we have evidence it was intended to affect the election, in violation of the Hatch Act.  The FBI is presently investigating its own handling of its twitter feed.

Charles concludes by discussing the seriousness of Comey’s behavior.

But whatever his motivation, his comments strike me as unethical at a minimum, and at worst, a violation of the Hatch Act, the law forbidding federal officials from influencing elections. To rise to the level of a crime requires intent, but even absent intent, he was, in my view as an FBI historian, surely reckless. Certainly Comey’s repeated editorializing on Clinton during an election had no precedent — not even during Hoover’s tenure. Even Hoover would not have done that — a thought that is nothing less than astonishing.

Hatch Act violations require intent.  Charles does not cite evidence of intent on Comey’s part.  David Cole recently wrote a piece on Comey and he also questions whether we have evidence Comey intended to influence the election.  I believe on this issue Charles and Cole are overlooking an important piece of evidence: Comey sent his message to congress 11 days before the election.

Comey could have given his message to congress after the election.  There is no legal or investigative reason for sending his message prior to the election.  In fact, the Hatch Act provides a legal reason not to provide his message to congress before the election.  The fact that Comey had the freedom to send his message to congress after the election and had a legal reason to do so and he still chose to send it before the election is evidence he intended to influence the election.  It is the most compelling piece of evidence we possess. Consequently, if someone wants to argue Comey did not intend to influence the election, the burden of proof is on them to provide a piece of evidence that is more compelling than the timing of his announcement.  So far no one has provided any evidence Comey did not intend to influence the election.

Also see, James Comey Role Recalls Hoover’s F.B.I., Fairly or Not, New York Times, Scott Shane and Sharon LaFraniere, October 31, 2016

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