The Director’s Disfunction

The Republican Chairman of the House Committee of Government and Oversight provided the gleeful announcement.

FBI Dir just informed me, “The FBI has learned of the existence of emails that appear to be pertinent to the investigation.” Case reopened

Jason Chaffetz, Chairman,
   House Government & Oversight Committee

And, of course, it went forth to the campaign trail.

They are reopening the case into her criminal and illegal conduct that threatens the security of the United States of America.

Donald Trump

Well, that was bracing.

And just when we thought the firestorm was at its hottest, the Director released raw files from more than 10 years ago about Presidential pardons issued by Bill Clinton back when the new century was just beginning. Before the ancient files sank like a rock beneath the waves, the release threatened to eclipse the on and off and on controversies over emails and servers and all things electrical.

Reports are now coming in that none of the new emails were sent by Hillary Clinton, or sent to Clinton. Most or all may be duplicates of emails already reviewed. Or they may have nothing to do with anything. Nobody has read them.

So lets trot once more over the well worn ground back to the source, shall we?

Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

James. B. Comey, Director, FBI,
   to Republicans in Congress.

How’s that again?

…the FBI cannot yet assess whether or not this material may be significant…

So the news is that there is material in the form of emails. Nobody knows whether the material is relevant to Hillary Clinton, or to any other investigation. So all we know, all the FBI knows, is that there is material. Period.

…cannot predict how long it will take…

So the material that may be material to something, or may not, will be read, no matter how long it takes to read it.

…important to update your Committees…

Important to let you know that we don’t know the importance of some unread material that will eventually be read.

This would have been unprecedented, except for one.single.prior.incident.

That single precedent was established by Director Comey himself in July, when he gave Congress an update on the investigation into email messages on the private server of Hillary Clinton. The controversy was caused by her practice of deciding much later whether email messages were private or official, years after they were sent. The consensus by those who judge such things is that she should have decided beforehand, while she was sending or receiving them, rather than later.

Here’s the right way:

Let’s see, this one I just got is private, but this one I just got is official.

And here’s the wrong way:

Let’s see, this one I got years ago was private, but this one I got years ago is official.

Most of the public doesn’t seem to see the controversy. I confess to being part of that baffled majority.

In July, Director Comey reported to Congress that there was nothing that had been found that would merit any sort of criminal charge. But he added his own private opinion, which was harsh and judgmental. Boy was she ever careless.

You see, three classified email messages had been discovered, each with a special mark somewhere in a paragraph near the bottom of the first page. None of the three had been sent by Secretary Clinton, all had been sent to her. The three messages dealt with matters so harmlessly routine; an announcement of an impending retirement, a note of congratulations, the election of a foreign leader; they were found to have been classified in error. Ridiculous error.

Director Comey’s report to Congress was a first. His stern opinion that went with it was a first on top of the first. A sort of second first.

Updates to Congress on investigations had not happened before.

Not ever.

For example:

Before he became a presidential candidate, before becoming a United States Senator, Attorney General Robert F. Kennedy had ordered a series of aggressive investigations into union corruption and organized crime. Years after his death details began to filter out. But during his life, Kennedy never provided updates. Not even after he had retired as Attorney General. Those were investigations and they were not to be discussed.


For example:

Reports to Congress about on-going investigations did not even happen under the directorship of J. Edgar Hoover, whose behind the scenes abuses have been clarified by post obituary documentation. He blackmailed legislators, attempted to destroy the Reverend Dr. Martin Luther King, and orchestrated civil rights abuses. There was one line he never crossed. He never provided updates to Congress regarding ongoing investigations.


There is a reason for that. It isn’t some odd tradition that survives mostly on inertia.

Investigations by legal authorities are held to be confidential precisely because the strong arm of the law can so easily be abused, even inadvertently. Unless a case goes to trial, prosecutors and investigators keep their findings confidential. In those rare cases where they don’t they can face prosecution themselves for abusing their authority.

That’s one way we keep the Republic functioning as a democracy. Want to know why? Because unofficial findings by the government can be used to suppress opponents – or even ordinary people caught up in something innocent.

When a corruption prosecution against Ronald Reagan’s Secretary of Labor failed and he was found not guilty, Raymond Donovan was justifiably angry about the lasting damage.

Which office do I go to get my reputation back?

– Raymond Donovan, May 25, 1987

At least details of that investigation were only revealed by federal authorities in court.

In 1996, Richard Jewell, a security guard, discovered a bomb just before it blew up, killing two people. He saved others, at some personal risk, by evacuating the area. For his courage, he became the subject of investigation himself. Did he plant the bomb in order to play the hero? Well, you have to investigate all possibilities, right?

Richard Jewell was named publicly as a “person of interest” in law enforcement leaks, suffering for years, even after he was publicly cleared a few months later.

Public figures are especially vulnerable, exposed as they are to public scrutiny. That is one reason long established guidelines prohibit law enforcement officials from revealing investigatory details, or from publicly charging elected officials in the weeks leading up to any election. It is as much an ethic as it is a tradition.

Banana Republic should be a trend-setting clothing outlet, not a system of government.

You don’t report on investigations to a legislature because you must not trust every elected official not to order up what should be private in order to get at an opponent.

But James Comey did report to Republicans in Congress. Then he went even farther and gave them an update. It should not have been difficult to predict that they would abuse that confidence and distort that information.

In a separate letter, Director Comey explained to FBI personnel why he wanted to update Republicans in Congress about what unknown emails had been discovered, why he needed to reveal the fact that there were no facts, why he felt it was important to tell them that he did not know of anything important to tell them.

I also think it would be misleading to the American people were we not to supplement the record.

James. B. Comey, Director, FBI,
   explaining his letter to Republicans in Congress.

So the Director wanted to set voters straight. Otherwise they might be misled.

…we don’t know the significance of this newly discovered collection of emails…

The Director had not read the emails in question. Doesn’t know when he will.

…I don’t want to create a misleading impression.

No misleading impressions about the impressions that were based on unknown, unread emails. He could certainly count on Republicans to refrain from relaying his information inaccurately. He wanted these Republicans in Congress to know all that could be known about what was unknown, that was of unknown importance, that would remain unknown for an unknown period of time. Because it was important not to mislead voters just before an election.

This has been the Seinfeld controversy, based on nothing.

It turns out to be the old wry observation about Los Angeles. There is no there there.

Another Shakespearean act, Much Ado about Nothing, sound and fury signifying… well, you know.

It looks at the moment as if these new violations of established practice will not have an effect on the national election itself. We are shaken but not stirred. However, vulnerable Republicans for local office may be grateful for unexpected survival.

The presence of liberal Democrats has always inflamed the inner serial killer in some conservatives. This campaign season has seen as high a level of partisan rage as I can recall.

But Director Comey, in his low key, professional way, has blazed a trail into an ethical wilderness.

Once the dust has settled, the course of action most consistent with his previous image of integrity will be quietly to submit his resignation to the new President.

Whoever she may turn out to be.

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