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Criminal defense lawyer: Don't blame James Comey
02:31 - Source: CNN

Editor’s Note: Charles Kaiser is the author of “1968 In America,” “The Gay Metropolis” and “The Cost of Courage.” The opinions expressed in this commentary are his own.

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Charles Kaiser: With letter to Congress, Comey goes further than J. Edgar Hoover

Comey should remember the FBI's dark legacy before taking such actions, Kaiser says

CNN  — 

James Comey has violated the first duty of the director of the FBI: Do no harm.

And don’t forget your history.

Anyone who goes to work every day in a building named after J. Edgar Hoover must always remember that he is running an agency that abused our democracy continuously when Hoover was running it, for nearly five decades. Hoover’s harassment of his political enemies, combined with a strong penchant for blackmail, reached a heinous peak in the 1960s when he used secret tapes from the Rev. Martin Luther King Jr.’s bedroom to try to scare the civil rights leader into committing suicide.

Charles Kaiser

By going public the way he did last Friday, Comey has actually taken Hoover’s secret abuses a step further. His gratuitous disclosure of the discovery of new emails (which may or may not have anything to do with Hillary Clinton) has done more to politicize the bureau than anything done by any other FBI director since Hoover died in office in 1972.

Not only was there no requirement for Comey’s action, it was also a brazen violation of the Justice Department’s fundamental principles of nonpartisanship, as Comey was repeatedly reminded before he insisted on this reckless course. There is no ethical justification for commenting in public on an ongoing investigation, and there is no justification for his de facto intervention in an election.

The most plausible explanation for Comey’s unseemly behavior is the pressure he felt from Republican congressmen, and right-wing career FBI agents, after he infuriated them when he concluded in July that there wasn’t enough evidence to show Hillary Clinton had ever committed any crime. He undermined the wisdom of that decision with a press conference last summer that violated another Justice Department imperative: Never engage in character assassination of someone who has never committed a crime. Now he has doubled-down on that bad behavior with this unnecessary disclosure just days before the election.

A Justice Department memo issued during the last presidential election said employees “must be particularly sensitive to safeguarding the department’s reputation for fairness, neutrality and nonpartisanship,” and said any employee “faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election” should contact the department’s public integrity section “for further guidance.”

The duty of top Justice officials to remain neutral – especially close to elections – is a sacred tenet of our democracy. That’s why no top Justice official has ever done what Comey did before. The FBI director had to know how quickly the Republicans would distort his words. His misstep puts him in an untenable position with Democrats: It makes him look like a witting participant in a possible coup d’etat. As FBI historian Tim Weiner told the BBC, “This seems to be a blind use of the prosecutorial sword.”

Instead of focusing on Comey’s abuse of power, the press only added gasoline to the conflagration, especially in its initial reports on television. The first stories described a “bombshell” disclosure about Clinton’s emails, when there actually had been none. After we learned that the FBI has not yet even obtained a search warrant to allow it to read the emails in question, it became clear that Comey had no idea what he was revealing.

Comey’s own words in a letter to bureau employees betrayed a tortured disingenuousness: “Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel I also think it would be misleading to the American people were we not to supplement the record.”

It’s pretty obvious that you’re on shaky ground when partisans as reliably Republican as Charles Grassley, chairman of the Senate Judiciary Committee, say your actions were “unsolicited and, quite honestly, surprising,” and “Congress and the public deserve more context to properly assess what evidence the FBI has discovered and what it plans to do with it.”

Voters should remember that this is only the latest instance of the press blowing up something that was never much of a scandal in the first place. Colin Powell and Condoleezza Rice both had private servers of their own when they served as secretary of state, and Powell said last week he was voting for Clinton for president.

When the administration of George W. Bush admitted that as many as 50 White House staffers had deleted 22 million emails from their computers in apparent violation of the Presidential Records Act of 1978, the revelation hardly caused a ripple, and it never became the subject of an FBI investigation.

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    And as Comey himself has admitted, the FBI has never uncovered any evidence that any of the emails on Clinton’s server were actually hacked by our enemies.

    So voters need to keep the latest “revelations” about Clinton’s emails in perspective. Nothing we have learned in the last 48 hours changes the fact that there is only one major party candidate for president with the experience and temperament to become an effective president. Because of Comey’s action, a vote for Clinton has assumed additional importance: Now it is also a vote against federal meddling in the outcome of national elections.

    John Flannery is a former special counsel to the House and Senate Judiciary Committees, and a former assistant US attorney in the Southern District of New York. “I think what Comey did is a shame and a disgrace,” Flannery told me. “He admits that he doesn’t know the information is relevant, yet he’s disclosed the information in violation of the Department of Justice guidelines, ethics and common sense. There’s a prosecutorial ethic that says you’re not supposed to talk about investigations. By definition it’s secret. It looks like he acted out of fear, incompetence or a partisan purpose. Or a little bit of all three.”

    What Hoover repeatedly proved, and what Comey has reminded us of, is the dangerous power of an untethered FBI director. Former Justice Department spokesman Matt Miller, who worked for Eric Holder, said Comey’s decision to ignore the advice of leadership at Justice was stunning.

    “I think he has a lot of regard for his own integrity,” Miller told the Washington Post. “And he lets that regard cross lines into self-righteousness. He has come to believe that his own ethics are so superior to anyone else’s that his judgment can replace existing rules and regulations. That is a dangerous belief for an FBI director to have.”

    Now we can only hope that Comey’s reckless decision has no discernible effect on the outcome of this election, and the reaction he has aroused will convince all future FBI directors that they must never behave this way again.