Donald Trump’s oft-repeated claim that the FBI’s investigation of “Crooked Hillary” and the presidential election itself were and are “rigged,” seems to have thrown FBI Director James Comey into a state of panic. In foolishly making a public announcement that the bureau is reviewing newly discovered emails related to Hillary Clinton’s personal server, he has inserted himself yet again into the presidential campaign.
The FBI virtually never announces the commencement or termination of ongoing criminal investigations. Such inquiries are often conducted in relative secrecy, enabling a more efficient investigation.
It is not unusual for investigations in so-called “white collar” cases to go on for years, luring the target into an unfounded belief that he or she is in the clear. Then the hammer falls. A grand jury indictment is announced by the Department of Justice and the handcuffs are swiftly employed.
The old, sensible FBI rule book apparently has been thrown on the trash heap this year. While undoubtedly attempting to be open and “transparent,” to protect the reputation of the FBI, the FBI director has tossed a Molotov cocktail into the presidential race.
The FBI was now taking “appropriate investigative steps. … to assess their importance to our investigation.” What in the world does this mean? One thing it means is that this issue will move to front and center during the final days of the presidential campaign.
Voters must now be subjected to endless speculation in the press and explicit accusations from the Trump campaign and other Republicans candidates that Hillary is a “criminal” aided and abetted by a rigged FBI and Justice Department. Comey’s “openness and transparency” will blow up in his face and further tarnish the FBI’s reputation. He has reinserted the bureau into the political process.
The director probably feared that leaks would lead to speculation that a renewed Hillary investigation was underway. In trying to get ahead of criticism of the FBI for jumping to a conclusion too quickly and closing the original Hillary investigation, he has only made matters worse and inserted a huge new issue into the presidential campaign, 11 days before the election.
In truth, investigations open and close routinely secretly when new evidence comes to light. Each new scrap in a pile of useful or useless evidence is not announced in real time, like a scandal in a scripted reality TV Show. Perhaps it’s time for the embattled FBI director who seems to have forgotten how to conduct a proper investigation to resign.
Comey’s public announcement in July that the FBI had concluded its investigation regarding Hillary Clinton’s use of a private email server in the conduct of official State Department business and would not recommend the lodging of criminal charges was historically unprecedented in a high-profile political case.
The decision to commence or terminate a criminal investigation by the FBI is rarely disclosed. In the case of high-profile political figures such as presidential candidates, the process normally requires that an FBI “recommendation” based on the evidence it has gathered must be forwarded to the Justice Department, where a career, nonpolitical unit reviews the matter, making a recommendation to the attorney general, who makes the final decision.
This sensible process was thrown into disarray when former President Bill Clinton made a surprise airport tarmac visit to none other than the sitting attorney general, Loretta Lynch. Both parties claimed that they engaged in harmless small talk involving their families and, of course, nothing about the FBI’s investigation of Hillary’s classified document and email server practices.
The meeting was utterly improper and the attorney general recognized this, promptly asserting that she would not personally make the decision about the Hillary Investigation, though strangely she would review the work of her subordinates before any public announcement of prosecution or non-prosecution was made.
This was then followed by the highly unusual announcement of “no criminal charges” and the end of the investigation by the FBI director. In the very rare case where an announcement of “no criminal charges” occurs, the prosecutors in the Justice Department would make such an announcement because Justice, not the FBI, makes prosecutorial decisions. The FBI makes a recommendation, Justice makes the decision.
Comey, while presumably attempting to insulate the Justice Department and the attorney general from claims that the Bill Clinton tarmac meeting had corrupted the investigative process, took the Justice Department and Loretta Lynch off the hook and made the announcement himself.
Trashing the Justice and FBI rule books in the interest of “openness” is likely to put the FBI front and center in one of the most contentious presidential races in recent US history. J. Edgar Hoover loved to influence elections, but he had the good sense to keep quiet about it.
Paul Callan is a CNN legal analyst, a former NYC homicide prosecutor and currently is “of counsel” to the New York law firm of Edelman and Edelman, PC, focusing on wrongful conviction and civil rights cases.