November 21, 2017

Comey Violated Important Principle by Disclosing Emails Investigation to Congress

As a former attorney general of my state, and a former United States attorney, it is perplexing for me to try to understand FBI Director James Comey’s conduct in the agency’s investigation of emails related to Democratic presidential nominee Hillary Clinton. We prosecutors lived by principles that he seems to have violated: Don’t discuss investigations, whether or not they are ongoing. Don’t volunteer evidence you haven’t charged. And don’t engage with legislators.  

I had a hard-and-fast rule in both those offices I held: If an investigation the public did not know about turned up nothing chargeable, we didn’t ever talk about it. To this day there are investigations the public doesn’t know about. My standard line, which I could give in my sleep, was: “We don’t discuss investigations whether or not they are ongoing.” 

Whenever the public is already aware of a crime, law enforcement can properly assure the public that it is on the case. The agencies involved, the number and names of officers or agents assigned, and the priority the case is receiving are all fair game to disclose. But if those investigations then turned up nothing chargeable, we indicated to the public at the appropriate time that the investigation was closed or that the grand jury returned no true bill, and that was it—period.  

Second, the only investigative evidence you would ever discuss is evidence necessary to protect the public, like a description of a dangerous defendant still on the loose, or of a missing victim.  

The only derogatory information we disclosed about a defendant was evidence we described in the charging document. The obvious corollary—no charges, no derogatory information. And we certainly never engaged in opinion about the conduct of individuals against whom no charges were brought. If you can’t make your case, as a prosecutor you shut up and move on. So it was odd when at Comey’s July press conference explaining his decision not to press charges against Clinton, he offered derogatory investigative evidence and his opinions. 

This is not just a matter of prosecutorial good manners. It’s an important protection against abuse of a very grave power. The danger of a prosecutor who can’t make a case nevertheless smearing an individual with investigative information is a real one. It’s serious enough that the former attorney general of Pennsylvania (Kathleen Kane) is headed to prison for abusing grand jury investigative information. A prosecutor could act out of personal spite, or because of politics, or from a simple desire to ingratiate himself with the public against an unpopular investigative target against whom he failed to make his case. None of that is acceptable.

My third rule as a prosecutor was a matter both of prudence and of separation of powers: legislators had no business in our business. Prosecutorial discretion in criminal investigations must be totally firewalled from any hint of legislative influence. There’s even a firewall between the Department of Justice and the White House on criminal investigations, with sharp restrictions on who can talk to whom about what.  

Congress is not entitled to notification from federal prosecutors about an ongoing investigation. Lawmakers’ political interest in an investigation is not a reason for disclosure; it’s a reason against disclosure. I would never answer questions from a legislator about evidence in any criminal investigation, particularly a politically fraught one. Even if a prosecutor had told Congress something about an ongoing investigation, and facts later changed, there is no duty to update. If important new evidence became public after an investigation was closed, you could assure the public you were aware of it and would treat it appropriately. But you would not divulge to Congress or to your state legislature new evidence that isn’t public. To volunteer investigative information to Congress, as Comey did on Oct. 28, is just bizarre.  

As a prosecutor, you don’t get to make nice with politicians, nor to tailor your investigations to meet their sense of how “fair and balanced” you are. That would be a horrible compass to steer by. To a prosecutor, it ought to be irrelevant if legislators are aggrieved, particularly because they can so easily manufacture faux aggrievement if they think that will influence you against a political adversary. They may be mad at you. They may be mean to you in hearings. But that comes with the job. There is no duty to disclose, particularly not to legislatures; and there is no going back once you start down the rat-hole of trying to please them.  

Given his distinguished career, I hate to believe that Comey’s motivation was to curry favor with congressional Republicans or to smear a political candidate. But his letter to Congress opens a door far better left firmly closed. Unprincipled prosecutors will take advantage of his bad example.

By: Sheldon Whitehouse