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James Comey’s Criticism of Clinton was Unprecedented, Improper and Maybe Even Politicized


FBI directors don’t make public statements about investigations, even when those investigations result in indictments. The last thing the FBI ever does is detail an entire investigation that led nowhere, and then follow up with a sweeping opinion about how the subject acted. FBI Director James Comey’s public pronouncement of Hillary Clinton as “extremely careless” was both not the point and totally the point. Obviously, Comey’s opinion lacks direct relevance to a Clinton prosecution, given that Comey is not a prosecutor and that the “extreme carelessness” is not an applicable legal standard. However, the statement carries great weight in the court of public opinion – a reality that has a very useful dual purpose. On the one hand, it allows the FBI to take credit for a nonpartisan investigation that was curtailed before it became a full-scale witch-trial. On the other, it satisfied Hillary-haters with an open and credible declaration of her sloppiness.

Still, the whole idea of Comey as the lone mouthpiece for the culmination of the entire e-mail saga is bizarre. Providing a public statement about what “a reasonable prosecutor” would do is, to put it mildly, not Comey’s job. Granted, this is an unusual set of circumstances, but the high stakes strike me as a reason for the DOJ to be more controlling than ever. If we’re talking about “reasonable prosecutors,” the one thing that’s totally clear is that no reasonable prosecutor would defer to any investigator when deciding which cases to prosecute. That’s just not how it works.

Police do not dictate to prosecutors. Police gather the information and keep their mouths shut. Prosecutors evaluate the evidence and decide whether to file charges.  There’s usually a mutual respect between police and prosecutors; but making public conclusions about a person’s behavior is clearly outside police authority. The FBI, in particular, is known for being tight-lipped, divulging as little information as possible outside the courtroom.

“If this was a bank robbery or a kidnapping, or any other crime, it would never have been handled this way.   You do the investigation, and you take it to the prosecutors who then say yes whether or not there is enough evidence,” said Bill Thomas, the former federal prosecutor who spoke with

“I think that Comey, for whom I have great respect, made a mistake when he went beyond simply announcing his decision to decline prosecution.  The decision not to prosecute should not have been accompanied by a detailed statement of what the evidence could show and certainly should not have included his opinion that Hillary was extremely careless,” said Elkan Abramowitz, a white collar defense attorney.

Comey’s statement yesterday wasn’t just unusual – it was literally unprecedented. In fact, Comey’s press conference skirted the FBI’s rules against public discussion of an ongoing investigation. Comey couched his decision to publicly denounce Secretary Clinton’s behavior in a professional duty to effect “unusual transparency.” That’s a pretty convenient “duty” for a Republican director to have four months before a presidential election.

Everything about yesterday’s press conference was orchestrated to build drama to satisfy onlookers. From Comey’s opening salvo, “they do not know what I am about to say,” to his characterization of the Department of State lawyers as bumbling idiots, the speech was crafted for impact. Comey has controlled the narrative on behalf of the FBI, but more importantly, on his own behalf. He has created a reality in which his professionalism is unimpeachable, his motives are unbiased, and his judgment is apolitical. And yet, he used his platform to give an unsolicited opinion slamming a presidential candidate in a manner bound to influence voters. What remains to be seen now is whether Comey himself will emerge as a Hoover-like figure of national interest, or whether he will be perceived as a reluctant spokesperson for a larger collection of Hillary-hating enthusiasts.


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos