The separation of governmental powers is one of the foundations of modern democracy. Federal Bureau of Investigation Director James Comey violated that principle by informing House of Representatives Republicans on Friday Oct. 28 that his department had discovered new emails that “may be significant” to its investigation into former Secretary of State and Democratic presidential nominee Hillary Clinton’s use of a private email server. Inappropriate conduct such as this is common in many parts of the world where the legal system functions as a tool for the government to impose its will on the people. The FBI is an investigative organization, which means that it has a responsibility to handle confidential material carefully and discreetly. Comey’s declarative letter followed neither of these principles.
The FBI is a section of the Department of Justice, which has a longstanding policy of not interfering with elections. This is often interpreted to mean that it avoids releasing pertinent information to the public within 60 days of an election. DOJ officials informed Comey of this, yet his announcement came within 11 days of the presidential election.
Comey’s letter to the United States Congress stated that he felt he had an obligation to report the information “in light of [his] previous testimony,” in which he had promised that the Bureau’s efforts were complete and that he would inform the Committee of any new developments.
The problem with this justification is that nothing has developed in Clinton’s case to the point at which it would be useful to share with the House, let alone the public. The new emails in question are reportedly from a computer shared by Clinton aide Huma Abedin and her husband Anthony Weiner, who is under investigation for sexual misconduct. In other words, these emails likely were not even sent by Clinton. In addition, Comey’s letter led many in the media to declare that the Clinton email case had been “reopened”—even though the case had never been officially closed.
Not only was Comey’s letter misleading, but it appeared to show a bias in his handling of politically sensitive investigations. Though the media doesn’t like to discuss it, the FBI is currently investigating Republican presidential nominee Donald Trump’s possible connections to recent Russian hacks of U.S. state computers. The FBI has not come forward with preliminary information about this investigation, even though its outcome is just as relevant to voters as that of Clinton’s email scandal.
Comey’s letter does seem to be affecting voters’ minds about the election. Trump is currently at a 23 percent chance of winning—his highest since the beginning of October, according to FiveThirtyEight’s polls-plus model.
The FBI is clearly aware of the potential impact of its work on the election, and Comey’s choice about how to deal with these concerns was a mistake. In trying to appear apolitical and thus help salvage the public perception of the American political system, Comey is giving one side inappropriate and more intense public scrutiny than the other.
There is no basis for this behavior in his mandate of assisting the justice system. Many critics of Clinton’s email scandal are not interested in giving her actions a fair and balanced assessment.
The basis of the email scandal claims that Clinton may have recklessly exposed state secrets to hackers. This claim often seems like a curious avenue of political attack against her since her opponent is likely the most reckless figure in modern politics.
But, overall, Clinton’s misuse of a private server certainly doesn’t approach the recklessness of Comey’s public revelation about a confidential case.