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Why It Probably Won’t Matter Even If James Comey Violated The Hatch Act


FBI Dir. Comey via screengrabBack in July, I called out FBI Director James Comey for his bizarre and unprecedented press conference in which he pronounced Hillary Clinton “extremely careless.” As I said then, 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.

Okay, I take that back. Holding a press conference to declare an investigation a dud is the second-to-last thing the FBI does. The actual last thing it does is to announce that it’s in the middle of reopening that dud. And that’s during normal times. During the two weeks leading up to a circus of a presidential election, such a decision is downright insanity.

Initially, I’d given Director Comey credit for having made political lemonade out of bushels of volatile lemons:

“FBI Director James Comey’s public pronouncement of Hillary Clinton as “extremely careless” … 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.”

But Comey’s more recent actions were far from a Great Compromise; they were more like a Desperate Plea for Republicans to save him. And saving may well be what Comey (or at least his career) needs from here on in. According to Senate Minority Leader Harry Reid (who wrote a scathing letter to Comey) and to Richard Painter (chief White House ethics lawyer under the George W. Bush administration who filed an official complaint against Comey with the Office of Special Counsel), Comey may have violated the Hatch Act.

Let’s just take a quick look at the Hatch Act shall we?

“an employee may take an active part in political management or in political campaigns, except an employee may not—

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election;”

Obviously, Comey sent his letter to Congress in his official capacity as the Director of the FBI. The only remaining question is why he sent it. If he was purposely interfering with the election, then he clearly violated the act. And as Painter pointed out in his op-ed in the New York Times,

“there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election.

Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position.”

I can get behind Painter’s logic. Intent, as a matter of law, is most often inferred by the surrounding circumstances. When a particular action predictably brings about an obvious result, engaging in that action will be deemed a “purposeful” causing of said result.   Impacting the presidential race is an obvious result of Comey’s actions, and without some other good explanation, it would seem fair to say that Comey must have been acting with precisely that purpose.

Then again, there is that little word in Painter’s argument that troubles me: “…no other good reason.” Comey’s best defense to a Hatch violation might be that his underlying reasoning was anything other than tipping the election scales; the reason would just have to exist, but it wouldn’t necessarily have to be good. Pandora opened her box not for a good reason – but for a really, really lousy one – and she’s the poster child for bringing about unintended results. Comey’s grasping for self-preservation could actually work to his advantage in the long run. He’d just need to making a convincing case for some non-Trump reason behind his letter to Congress.

Constitutional Law Expert Jonathan Turley took the position that the Hatch Act “is simply a dog that will not hunt,” – in his recent piece denouncing the Reid/Painter charges against Comey. Professor Turley pointed out a major weakness with a Hatch allegation: that no evidence was even suggested with regard to Comey’s intent to influence the election.  Turley wrote that Painter “has no evidence to suggest that Comey wants to influence the election or favors either candidate. Intent is key under the Hatch investigations.”

In the end, a question of any Hatch violation comes down to the same one so many cases do: whether the finder of fact is willing to infer the content of the accused’s mind. In the court of public opinion, that willingness willy surely fall along political lines, with Clinton supporters making a logical leap and conservatives demanding conveniently non-existent concrete proof.

In the long run, these questions will remain in the academic ether. The Hatch Act is a civil (not criminal) statute, which doesn’t even set out penalties for violators. And while it may not be totally meaningless, neither is it the kind of law that looms very large over high-level officials. As my colleague Rachel Stockman pointed out, even when someone was recently found to have violated the Hatch Act, nothing really came of it.

Comey’s decision to exceed the bounds of his authority may have been his own response to a Morton’s Fork dilemma of two equally bad choices. If he stayed silent, he’d have eventually been skewered for helping Hillary win the election; if he spoke up, he’d be just as impaled for affecting things otherwise. Knowing that January will likely bring a Clinton inauguration, Comey may have decided that his future would be best served by his becoming a caution-to-the-wind champion of transparency in prosecution. Then, at least he might have preserved his reputation for a no-nonsense law enforcer. Plus, Hillary-hating Republicans might remember his service and take care of him after the election if they manage to hold on to Congress.

Whether Comey’s disclosure of the Weiner-Abedin-Clinton e-triangle will amount to anything on its own remains to be seen. But I think the events of the last week, if nothing else, show the prescience of my Mediaite colleague, Tommy Christopher, when he said, “James Comey may have his biases, but they are institutional, if anything, and are against Hillary Clinton, if they exist at all.”

This is an opinion piece. The views expressed here are just those of the author.

Follow Elura on Twitter @elurananos

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