Leave Comey alone

In the wake of Hillary Clinton’s surprise loss to Donald Trump, there has been a fair amount of finger-pointing within the Democratic Party trying to determine what exactly went wrong. Bernie Sanders didn’t do enough to energize his supporters. Polls showing Clinton securely ahead instilled a sense of complacency among her supporters. Clinton’s vaunted data operation ignored warning signs in the Midwest in favor of going for a landslide by targeting Florida, North Carolina and Arizona. The allegations go on and on.

The most popular claim, however, as repeated by Clinton herself in a recent piece in The New York Times, is that it is all FBI Director James Comey’s fault.

{mosads}On a conference call with donors, Clinton placed particular focus on Comey’s decision to issue his now-infamous letter 11 days before Election Day. That letter stated that the FBI was reviewing emails found on Huma Abedin’s estranged husband’s laptop to determine if any of the emails concerned the FBI’s investigation into alleged mishandling of classified information by Clinton and her senior aides.

There are lots of reasons why an election like this is not successful, Mrs. Clinton said, according to a donor who relayed the remarks. But, she added, our analysis is that Comey’s letter raising doubts that were groundless, baseless, proven to be, stopped our momentum.

…

Her campaign said the seemingly positive outcome had only hurt it with voters who did not trust Mrs. Clinton and were receptive to Mr. Trump’s claims of a “rigged system.” In particular, white suburban women who had been on the fence were reminded of the email imbroglio and broke decidedly in Mr. Trump’s favor, aides said.

To be fair, I do not have any particular reason to doubt the analytical aspect to this assertion. Indeed, I find it reasonable and plausible to believe that many of the traditionally Republican suburban voters who had been leaning toward Clinton for months chose during that last week to switch back to Trump. The renewed emphasis on Clinton’s email saga at the Department of State, and the revived concerns about her trustworthiness and honesty, were just too much for those voters to handle.

What is missing from this “it’s not our fault” assessment, however, is whether there was anything truly improper about Comey’s decision to issue that letter in the first place.

Two days before the election, when all the projection models still showed Clinton’s odds of victory ranging from 65 percent to 99 percent, I publicly called on a lot of nervous Democrats to lay off Comey.

Everyone, lay off Comey. If I had been working for him, I probably would have told him to send that first letter to Congress too.

— Bradley P. Moss, Esq (@BradMossEsq) November 6, 2016

I stand by that remark today. Was Comey’s decision to address this matter in such a public and arguably premature manner unconventional? Yes. Did it arguably conflict with internal agency policy on avoiding interference with pending political elections? Yes.

But who is truly at fault here?

It was not Comey who chose to exclusively use a private email account, and a private server, to conduct official U.S. Government business.

It was not Comey who declined to ever inquire into whether the Offices of Security and General Counsel at the Department of State viewed such a communication practice as legal, let alone wise from the standpoint of avoiding inadvertent exposure of sensitive or classified information.

It was not Comey who declined to inquire into archiving practices of the Department of State so as to confirm that a practice of CCing other people on State.gov accounts would ensure that all such emails were properly stored for records management purposes.

It was not Comey who declined to inquire into the need to produce copies of work-related emails stored on that private email account prior to departing federal service.

All of those decisions were made by Clinton and her senior aides, though that doesn’t necessarily mean their actions were criminal.

I, for one, have been unwavering in my view that Comey’s decision not to seek an indictment was proper. Nothing in the FBI investigation evidenced a deliberate or intentional effort by Clinton or her senior aides to send through unclassified email accounts information they knew or reasonably should have known was classified.

Similarly, nothing in the FBI investigation gave me reason to believe Clinton or her senior aides knew or had reason to know that any of the emails they were receiving from other government officials on their own respective unclassified email accounts actually contained classified information.

I have been just as resolute in my belief, however, that Comey’s public criticism of Clinton and her senior aides for their extreme carelessness was appropriate. I have represented government civilians, contractors and military personnel for the last decade, primarily in security clearance and personnel matters. I have seen clients lose their security clearances, their jobs and their careers in the national security arena for making mistakes far less severe than those made by Clinton and her senior aides. Those mistakes might not warrant criminal action, but they were not blameless either. 

In light of those circumstances, what choice did Comey really have after his agents told him there was a newly secured laptop with 650,000 emails that had to be reviewed? His congressional testimony was now possibly inaccurate. If he had said nothing, and the information had leaked, it would have shaken further the public’s confidence in the FBI and the U.S. government writ large.

Comey is an institutionalist, not a political operative. He has worked for the Department of Justice, on and off, for the last three decades. The institutional integrity of his agency was too important for him to risk it to help a political candidate save face.

People can debate for the next four years whether Comey made the right decision. That decision only had to be made, however, because of poor judgment calls made by Clinton and her staff in 2009. If they want to assign blame, it ultimately should fall on their own shoulders. 

Bradley P. Moss is a Washington, D.C. national security attorney and Senior Associate at the Law Office of Mark S. Zaid, PC.

The views expressed by contributors are their own and not the views of The Hill.