At least the FBI got the last act of its October fiasco right. On Sunday afternoon, two days before Election Day, director James B. Comey wrote in a letter to Congress that the bureau had finished its review of thousands upon thousands of e-mails related to Democratic nominee Hillary Clinton’s server, and that no criminal charges would be recommended. The bureau does deserve credit for working so rapidly, and giving the American people a bit more clarity after it cryptically disclosed the new inquiry a little over a week ago.
The bottom line: Comey’s conclusion from an earlier investigation stands. Clinton should not have used her own server while Secretary of State, which made her communications vulnerable to hacking, but her mistakes were not criminal. There is no evidence that national secrets were stolen, or that anyone was harmed as a result of her e-mail setup. She has still rightly apologized for her actions.
So things stand where they were in July, when Comey said that because there was no evidence of criminal intent, no reasonable prosecutor would charge Clinton in the case. The hyperventilating from Republican nominee Donald J. Trump aside, it could not be clearer that Clinton’s e-mail practices do not disqualify her for the presidency, then or now.
But the bureau’s diligence over the last week doesn’t erase serious questions about its conduct, which should come under greater scrutiny from lawmakers after the election. There are plausible suggestions that at least some members of the bureau acted out of partisan motivations that have no place in law enforcement, and that Comey made an error in judgment disclosing the new review’s existence in a letter noteworthy for its vagueness and innuendo. Comey’s communique was one that — by virtue of its timing alone — demanded clarity, and his effort was anything but.
The more recent batch of e-mails were reportedly found on a laptop belonging to Anthony Weiner, the former congressman and estranged husband of a top Clinton aide. Weiner is under investigation on an unrelated matter.
The very fact that the FBI is investigating something related to a politician creates a whiff of scandal, even if nothing comes of it, which is why the Justice Department’s normal practice is to avoid taking overt investigative acts in the run-up to an election. The bureau knew about the e-mails weeks ago and wanted a warrant to review them to see if any had relevance to the server investigation. Comey has not provided a good rationale for why he departed from policy in Clinton’s case, divulging the review just 11 days before the election.
More troubling still, reports emerged that his hand may have been forced by FBI agents with partisan ties to the Trump campaign who would have leaked the information. One of Trump’s top surrogates, former New York City mayor Rudolph W. Giuliani, appeared to confirm that he had discussions with FBI officials about the e-mails before they became publicly known. Other news reports suggest that the FBI has been pressing for investigations on leads dredged up by the anti-Clinton conspiracy community, which suggests a failure of oversight by Comey or other senior officials.
It would have been wiser for the FBI to review the content of the Weiner e-mails before Comey said anything, and to have followed normal Justice Department procedures by waiting until after the election. By violating all of its normal rules, the FBI has left itself open to charges that it has abused its power and meddled in politics. Regardless of the outcome on Tuesday, Congress ought to hold hearings on the bureau’s conduct — starting with Comey, but not limited to him.