Reid Alleges That Comey May Have Violated Federal Law In Disclosure To Congress

225px-harry_reid_official_portraitJcomey-100I just spoke on the BBC where the anchor was pursuing the question of “whether the FBI broke the law” by informing Congress of the reopening of the investigation into the emails. The allegation came from Senate Minority Leader Harry M. Reid on Sunday. However, with all due respect to our esteemed GW graduate (and I really do respect Sen. Reid), his allegation is in my view wildly misplaced. Reid is arguing that the actions of FBI Director James B. Comey violates the Hatch Act. I cannot see a plausible, let alone compelling, basis for such a charge against Comey.


In his letter to Comey, Reid raised the the Hatch Act, which prohibits partisan politicking by government employees.

5 U.S.C. § 7323(a)(1) prohibits a government employee from “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.”

Reid argued:

“Your actions in recent months have demonstrated a disturbing double standard for the treatment of sensitive information, with what appears to be a clear intent to aid one political party over another. I am writing to inform you that my office has determined that these actions may violate the Hatch Act, which bars FBI officials from using their official authority to influence an election. Through your partisan actions, you may have broken the law.”

The reference to “months” is curious. Comey has kept Congress informed in compliance with oversight functions of the congressional committees but has been circumspect in the extent of such disclosures. It is troubling to see Democrats (who historically favor both transparency and checks on executive powers) argue against such disclosure and cooperation with oversight committees. More importantly, the Hatch Act is simply a dog that will not hunt.

Richard W. Painter, a law professor at the University of Minnesota and the chief ethics lawyer in the George W. Bush White House from 2005 to 2007, has filed a Hatch Act complaint against Comey with the federal Office of Special Counsel and Office of Government Ethics. He argues that “We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway.”

However, Comey was between the horns of a dilemma. He could be accused of acts of commission in making the disclosure or omission in withholding the disclosure in an election year. Quite frankly, I found Painter’s justification for his filing remarkably speculative. He admits that he has no evidence to suggest that Comey wants to influence the election or favors either candidate. Intent is key under the Hatch investigations.  You can disagree with the timing of Comey’s disclosure, but that is not a matter for the Hatch Act or even an ethical charge in my view.

Congress passed the Hatch Act in response to scandals during the 1938 congressional elections and intended the Act to bar federal employees from using “[their] official authority or influence for the purpose of interfering with or affecting the result of an election.” Comey is not doing that in communicating with Congress on a matter of oversight.

Such violations under the Hatch Act, even if proven, are not criminal matters. The Office of Special Counsel -can investigate such matters and seek discipline — a matter than can ultimately go before the Merit Systems Protection Board.

That does not mean that there is not a policy against statements or actions influencing elections.  Comey issued a memo in March 2016 reminding that employees “should be particularly mindful of these rules in an election year,” and defining prohibited political activity to include all “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.”

281 thoughts on “Reid Alleges That Comey May Have Violated Federal Law In Disclosure To Congress

  1. DONALD TRUMP’S COMPANIES DESTROYED EMAILS IN DEFIANCE OF COURT ORDERS
    http://www.newsweek.com/2016/11/11/donald-trump-companies-destroyed-emails-documents-515120.html

    Over the course of decades, Donald Trump’s companies have systematically destroyed or hidden thousands of emails, digital records and paper documents demanded in official proceedings, often in defiance of court orders. These tactics—exposed by a Newsweek review of thousands of pages of court filings, judicial orders and affidavits from an array of court cases—have enraged judges, prosecutors, opposing lawyers and the many ordinary citizens entangled in litigation with Trump. In each instance, Trump and entities he controlled also erected numerous hurdles that made lawsuits drag on for years, forcing courtroom opponents to spend huge sums of money in legal fees as they struggled—sometimes in vain—to obtain records.

    This behavior is of particular import given Trump’s frequent condemnations of Hillary Clinton, his Democratic opponent, for having deleted more than 30,000 emails from a server she used during her time as secretary of state. While Clinton and her lawyers have said all of those emails were personal, Trump has suggested repeatedly on the campaign trail that they were government documents Clinton was trying to hide and that destroying them constituted a crime. The allegation—which the FBI concluded was not supported by any evidence—is a crowd-pleaser at Trump rallies, often greeted by supporters chanting, “Lock her up!”

  2. Republicans Better Off Losing by Landslide, George Will Says
    http://abcnews.go.com/Politics/republicans-off-losing-landslide-george/story?id=43222908

    George Will, a Pulitzer Prize–winning conservative journalist who ripped up his Republican card this year after Donald Trump’s nomination, says a narrow GOP defeat would be “the worst conceivable outcome” for the party.

    FBI Director James Comey’s announcement of the discovery of possibly new Hillary Clinton emails last Friday appears to have shaken up national polls, narrowing the gap between the two candidates. But Will said a narrow defeat would fuel “the old stab-in-the-back theory,” with party members blaming Trump dissenters like House Speaker Paul Ryan and Nebraska Sen. Ben Sasse for dividing Republicans.

    Will, a columnist for The Washington Post, argued that a landslide win for Clinton would help Republicans by giving the party room to distance itself from divisive candidates and from the “indignation industry,” as he dubbed it, of talk radio and cable personalities.

    Speaking to ABC News’ Jonathan Karl and Rick Klein on the “Powerhouse Politics” podcast today, Will said he was doubtful of a Republican win, barring fundamental changes in the party, starting with how Republican radio and talk show hosts speak about certain issues and groups.

    “Until the Republican Party gets right with minorities in this country,” Will said, “it’s never going to win another presidential election.”

    He said, “The party has to look at its nominating process. It must never again have debates with 12 people onstage at a time.”

    “I don’t know what you do to erect a kind of filter to keep a certain kind of candidate off the stage, but they have to work on their nominating process,” he added.

    Known for referring to baseball in his columns, Will said of the 23 percent chance that FiveThirtyEight’s Nate Silver estimates both Trump and the Chicago Cubs have of winning this year, “I think he’s underestimating the Cubs and overestimating Donald Trump.”

    Will said Comey’s announcement about the review of possibly new Clinton emails was reckless, arguing that he broke FBI protocol for the wrong reasons.

    “He sends this letter to Congress, saying emails of unknown content and unknown prominence might be ‘pertinent’ — that’s a word to watch for here — to the prior Clinton investigation,” Will said. “Something can be pertinent without being significant. That is, it could be pertinent in the sense that it’s redundant evidence of what we already know, which was that she was, in Comey’s language, ‘extremely careless’ in handling sensitive materials.”

    “This is not news people can use,” Will continued. “It’s of no help to voters. And it’s of no help to anyone, so far as I can see.”

    “It’s an old saying our grandmothers told us — don’t talk unless you can improve the silence,” he added. “I don’t think he did.”

    • In the editorial cited, Mr. Rosenthal ( the author) fails to mention the presumably “righteous meddling” of Bill Clinton on the tarmac.
      I didn’t see any mention of Loretta Lynch and her “leadership” of the DOJ.
      Any serious discussion of the DOJ/FBI situation needs to include the elements I mentioned above.
      Of course, the editorial cited here wasn’t a serious attempt to cover the issue.
      Instead, the author decided to pretend that the recent turn of events in the investigation happened in a vacuum.

  3. The DOJ has become politicized by the Clinton’s.

    Could any right thinking person in America ever think this could have happened? With the line agents of the FBI in revolt: 1. Against the DOJ blocking a Grand Jury hearing, 2. The DOJ not providing information they have so the Investigators can review and determine whether the info is germane or not (probably is which is why it is hidden away), and 3. so many more examples of how the Clinton’s, the POTUS, Podesta, and the rest of the cast of unconvicted criminals are perfectly happy with a presidential candidate being elected president while under TWO FBI investigations.
    It is easy to see how they don’t care about this country one bit! They only care about themselves. They are selfish pigs who do anything to advance their cause. Talk about deplorable humans. They take the cake.

    • “The DOJ has become politicized by the Clinton’s.”

      That gave me my best laugh of the week! Ever hear of John Mitchell or Alberto Gonzalez?????

      John Mitchell was the only United States attorney general to ever serve a prison sentence. He went to trial and was convicted for his involvement in the Watergate cover-up.

      • The Criminal Division during John Mitchell’s tenure was run by Henry E. Petersen, a 20 year department veteran, career prosecutor, and registered Democrat. Prior to the Watergate scandal, Petersen had a conference with John Dean wherein Dean was passing on White House wishes that a particular investigation be quashed. Petersen tells him that at no time in his tenure at the Criminal Division had an investigation once opened been quashed at the orders of the White House. “The lawyers in this division would walk out”.

        Robert Bork used to make the case that the special prosecutor law was unnecessary. He was remembering the Criminal Division of the Petersen era (during which time Bork was Solicitor-General). The Criminal Division of the Holder / Lynch era is a cruddy lawfare operation.

        Alberto Gonzalez?????

        Well, I recall the Democratic cognoscenti were infuriated he’d fired 8 US Attorneys. (Bilge Clinton fired all 93 US Attorneys on taking office in 1993).

        • John Mitchell resigned as Attorney General to run Nixon’s campaign.
          I don’t think any of his criminal offenses were related to his tenure as Att.Gen.
          His successor, Richard Kleindeist, was approached by G. Gordon Liddy shortly after the Watergate breakin.
          Liddy advised Kleindeist to back off of full scale investigation because it would lead to people in the White House.
          Kleindeist told Liddy to take a hike, and told his people press ahead on the investigation.
          Some Attorneys General have been better than others.
          But I’ve never seen the DOJ look like a rudderless ship, which seems to be the situation currently.

            • This is you talking to yourself. I never said that it hadn’t been previously politicize nor did I ever say it was the first time for this. So, I will restate to say that the current politicizing of the DOJ casts a dark shadow over this election. AND the win at any cost is dangerous.
              If only HRC had released all of her emails a long time ago, I doubt there would be any of this BS being shoved down the throats of us voting Americans. That is undeniable.

              But as a fan of the JT blog site, I have grown too weary to read any more of the BS on this subject. And I just recently made up my mind and have just voted.

  4. The FBI Is Self-Destructing at the Worst Possible Moment
    And it was a long time coming.
    http://www.esquire.com/news-politics/politics/news/a50282/fbi-clinton-cash-new-york-times/

    Of all the astonishing things in an astonishing (and increasingly grim) presidential campaign, the sudden involvement of elements of the Federal Bureau of Investigation in the act of ratfcking a candidacy is even more amazing than the fact that there is a vulgar talking yam one step away from running almost the entire federal government. There hasn’t been a hotter hot mess in Washington since John Mitchell was running both the Department of Justice and a criminal conspiracy to obstruct same.

    On Thursday, for example, thanks to the folks at Think Progress, we discovered that the Feebs are now investigating their own Twitter account.

    ThinkProgress has learned that the FBI’s Inspection Division will undertake an investigation of the account. Candice Will, Assistant Director for the FBI’s Office of Professional Responsibility, said she was referring the matter to the FBI’s Inspection Division for an “investigation.” Upon completion of the investigation, the Office of Professional Responsibility will be referred back to the Office of Professional Responsibility for “adjudication.” Federal law and FBI policy prohibit employees from using the power of the department to attempt to influence elections.

    Yeah, horses, barns, that whole thing. The important thing to remember is that one portion of the FBI seems to be at war with another portion of the FBI and that almost everybody has a gun.

    But, by far, the most astonishing revelation has been that, in launching their probe into the Clinton Foundation, the Feebs in charge relied for source material on Clinton Cash, the meretricious hit job by veteran GOP ratfcker Peter Schweizer, as The New York Times tells us. (Schweizer runs a rightwing chop shop founded by Steve Bannon, the Breitbart slug who’s running the Trump campaign.) Keep the Times in mind, because it gets better.

    In August, around the same time the decision was made to keep the Manafort investigation at a low simmer, the F.B.I. grappled with whether to issue subpoenas in the Clinton Foundation case, which, like the Manafort matter, was in its preliminary stages. The investigation, based in New York, had not developed much evidence and was based mostly on information that had surfaced in news stories and the book “Clinton Cash,” according to several law enforcement officials briefed on the case. The book asserted that foreign entities gave money to former President Bill Clinton and the Clinton Foundation, and in return received favors from the State Department when Mrs. Clinton was secretary of state. Mrs. Clinton has adamantly denied those claims.

    If that seems a rather anodyne description of the book, it should, because, more than most publications, the Times has a good reason to soft-pedal the impact of Clinton Cash on federal law enforcement. In April of 2015, in an act that both reminded us all of how the Times was Ken Starr’s lapdog regarding the Clintons in the 1990s and presaged the abysmal coverage that followed of Hillary Rodham Clinton’s campaign, the Times—and, alas, Marty Baron’s Washington Post—entered into an unprecedented deal with Schweizer, whose history as an ideological picklock already was well-known…

  5. Donald Trump’s FBI: James Comey’s department is filled with pro-Trump, anti-Hillary Clinton partisans
    The Bureau seems to be filled with partisan hacks hell-bent on investigating Hillary Clinton
    http://www.salon.com/2016/11/03/donald-trumps-fbi-james-comeys-department-is-filled-with-pro-trump-anti-hillary-clinton-partisans/

    Under FBI Director James Comey, whose ethically challenged letter Friday has put wind in Donald Trump’s sails, the Bureau has engaged in a partisan witch hunt against Democratic nominee Hillary Clinton — and it’s all because there’s a pro-Trump bias.

    As The Guardian reported on Thursday, many sources within the FBI admitted to the newspaper that many agents were outraged that Comey decided not to recommend an indictment against Clinton in July.

    “The FBI is Trumpland,” one agent admitted to the site, with another describing how Clinton is “the antichrist personified to a large swathe of FBI personnel” and “the reason why they’re leaking is they’re pro-Trump.”

    While some of The Guardian’s sources disagreed that the FBI is overwhelmingly pro-Trump, all of them stated that the attitude toward Clinton is extremely negative.

    “There are lots of people who don’t think Trump is qualified, but also believe Clinton is corrupt. What you hear a lot is that it’s a bad choice, between an incompetent and a corrupt politician,” admitted a former FBI official.

    One of these partisan agents is feeding Fox News’ Brett Baier, who claimed Wednesday that he had sources in the FBI personally assuring him that Clinton is going to be indicted.

    “Two separate sources with intimate knowledge of the FBI investigations into the Clinton emails and the Clinton Foundation tell Fox the following,” Baier said on his show. “The investigation looking into possible pay-for-play interaction between Secretary of State Hillary Clinton and the Foundation has been going on for more than a year. Led by the white collar crime division, public corruption branch of the criminal investigative division of the FBI.”

  6. FBI Believes 5 Foreign Intel Agencies Got Into Hillary’s Server

    November 3, 2016

    Daniel Greenfield

    Just one of those “honest mistakes” leading to a massive violation of national security by anyone who felt like it. These are still reports from various insider sources, but if true, this would be a major factor in how much damage Hillary’s cover up did.

    Authorities now believe there is about a 99 percent chance that up to five foreign intelligence agencies may have accessed and taken emails from Hillary Clinton’s private server, two separate sources with intimate knowledge of the FBI investigations told Fox News.

    The revelation led House Homeland Security Committee Chairman Michael McCaul to describe Clinton’s handling of her email system during her tenure as secretary of state as “treason.”

    “She exposed [information] to our enemies,” McCaul said on “Fox & Friends” Thursday morning. “Our adversaries have this very sensitive information. … In my opinion, quite frankly, it’s treason.”

    McCaul, R-Texas, said that FBI Director James Comey told him previously that foreign adversaries likely had gotten into her server. When Comey publicly discussed the Clinton email case back in July, he also said that while there was no evidence hostile actors breached the server, it was “possible” they had gained access.

    If true, this is much more than possible, and it would explain the level of outrage within the FBI at the pass that Hillary Clinton has received.

    • Bam bam-
      Almost everything I’ve read indicates that there is a strong likelihood that Hillary’s homebrew server was hacked.
      I’ve seen very little published on the vulnerabilty of the other c. dozen devices that likely contained some of the same
      classified material as the server.
      If the Huma/ Carlos Danger laptop did contain classified material, that would seem to be just one more opportunity, one more device, for hackers to exploit.
      My understanding is that this laptop, or Hillary’s unsecured Blackberry, would actually be softer targets than the server itself.

  7. Meet Donald Trump’s Top FBI Fanboy
    Trump supporters with strong ties to the agency kept talking about surprises and leaks to come—and come they did.
    http://www.thedailybeast.com/articles/2016/11/03/meet-donald-trump-s-top-fbi-fanboy.html?via=desktop&source=twitter

    Two days before FBI director James Comey rocked the world last week, Rudy Giuliani was on Fox, where he volunteered, un-prodded by any question: “I think he’s [Donald Trump] got a surprise or two that you’re going to hear about in the next few days. I mean, I’m talking about some pretty big surprises.”

    Pressed for specifics, he said: “We’ve got a couple of things up our sleeve that should turn this thing around.”

    The man who now leads “lock-her-up” chants at Trump rallies spent decades of his life as a federal prosecutor and then mayor working closely with the FBI, and especially its New York office. One of Giuliani’s security firms employed a former head of the New York FBI office, and other alumni of it. It was agents of that office, probing Anthony Weiner’s alleged sexting of a minor, who pressed Comey to authorize the review of possible Hillary Clinton-related emails on a Weiner device that led to the explosive letter the director wrote Congress.

  8. Why James Comey should resign
    http://theweek.com/articles/659141/why-james-comey-should-resign

    It is now clear that FBI Director James Comey’s last-minute intervention in the presidential election has given Donald Trump a boost of several points in the polls. Comey’s short announcement to Republican congressional committee heads that he was investigating new emails related to the Hillary Clinton email server investigation hit that TV news sweet spot of vague but ominous-sounding, and centrist journalists were on it like a pack of dogs on a three-legged cat.

    The fact that there was no concrete anything in the announcement (for all we know, the emails might not have anything to do with Hillary Clinton at all), did not even slightly hinder several consecutive days of the most crack-brained people in journalism speculating wildly about the disastrous effects it was sure to have on Clinton’s campaign. That prophecy became self-fulfilling. Poll averages show Trump gaining at least a couple points, and a recent poll now shows Trump beating Clinton by 8 points on honesty.

    Meanwhile, the FBI team is reportedly skeptical that they’ll be able to produce anything concrete about the emails before the election — which, let’s remember, is next Tuesday.

    But this much is clear: James Comey should resign immediately.

    Law enforcement agencies have a tremendous potential for influencing an election, for obvious reasons. If one candidate is perceived as a criminal, that is a near-guarantee that he or she will lose. This power is often abused in more authoritarian societies. Therefore, any democracy worth its salt will place careful restraints on law enforcement and elections, so as to avoid undue influence one way or another.

    That is not to say that candidates are above the law, but that any investigation must be conducted with the utmost caution. In particular, preliminary findings should not be leaked, as many people tend to assume that investigation implies guilt.

    Lo and behold, there is a general guideline that the FBI is supposed to do its utmost to avoid electoral politics in the 60 days before an election. This was something Comey himself apparently understood as recently as this summer — more than 60 days before election day — when he refrained from conducting public subpoenas in investigations into both Trump and Clinton’s campaign, for fear of unduly slanting things one way or the other. That caution clearly didn’t stop his latest announcement.

  9. The Attorney General has the power to fire the FBI Director.
    The Attorney General also had the authority to order the Director not to notify Congress of the discovery of
    “Huma emails”.
    Comey may or may not resign…..either way, I don’t think finish his term as FBI Director.
    IF the Attorney General is actually the top official in the DOJ, it’s on her to reign in an FBI Director if she feels he’s unfit to serve, or is overreaching.
    As far as the connection between Rudy Giuliani and James Kallstrom with the FBI, Kallstrom was the Assistant Director of the FBI.
    Giuliani was a high profile federal prosecutor….probably thd best known fed. prosecutor in the country…prior to serving as NY mayor.
    He took office shortly after the first WTC bombing, and left office shortly after the 9-11 attacks took the WTC down.
    The FBI was involved with Giuliani when he was a prosecutor, and certainly involved with him as mayor of a major city specifically targeted by major terrorist attacks.
    It’s not a stretch to figure out that both Giuliani and Kallstrom know people in the FBI.
    That’s not exactly a “news flash”, given their careers.

  10. Conway: False Indictment Story Trump Pushed Did Political Damage To Clinton
    http://talkingpointsmemo.com/livewire/kellyanne-conway-damage-trump-false-indictment-story-done-hillary-clinton

    Donald Trump’s campaign manager admitted Thursday that a story her candidate pushed on the trail about the FBI predicting an indictment for Hillary Clinton was baseless, but said that the political damage to the Democratic nominee was already done.

    MSNBC’s “11th Hour” host Brian Williams asked Kellyanne Conway about a report from Fox News in which two anonymous “sources with intimate knowledge” of an FBI inquiry into the Clinton Foundation said an indictment of Clinton was “likely.” Trump recounted a version of the report to a crowd in Jacksonville, Florida on Thursday, crowing that “FBI agents” said his opponent would be indicted.

    “This has been walked back, the indictment portion, by Fox News who originally reported it and by NBC News which has done subsequent reporting on this,” Williams said. “Will Donald Trump amend his stump speech to walk back the same thing?”…

    On MSNBC, Williams noted that falsely claiming that a political opponent will face indictment misleads voters.

    “As a lawyer, you would concede indictment is not only a term of art, it’s a term of law and that’s a big difference to use the expression likely indictment when all the reporting is to the contrary,” he said.

  11. GOPer Steve Schmidt blisters Comey: No director ‘has done more damage’ to FBI’s reputation
    http://www.rawstory.com/2016/11/goper-steve-schmidt-blisters-comey-no-director-has-done-more-damage-to-fbis-reputation/

    Republican strategist Steve Schmidt absolutely tore into FBI Director James Comey on Friday, and told MSNBC that no director in recent memory has done as much to harm its reputation as an institution.

    During his interview, Schmidt ripped Comey as an egomaniac who has put his own public image ahead of doing what’s right for both the FBI and the country.

    “Comey put himself in a box because nothing has higher primacy in the mind of James Comey than his own image,” said Schmidt. “Because of that, he’s brought profound, profound discreditation upon the Federal Bureau of Investigation. He put his image ahead of the institution.”

  12. Actually there is clear and direct evidence that Comey violated the hatch act.

    Explain to me how his former boss Giuliani knew about the letter to congress TWO DAYS before it was sent?!?!? Any tRumpanzee who watches faux news probably seen him hinting about “something big coming from the FBI” in a few days on Fox Spews. Oh, and Giuliani has pretty much already admitted to it, although the little sh1t is now changing his story all of a sudden.

    That not only shows intent, but also premeditation and coordination with tRumps campaign as well…

    • John Smith – latest story is that Comey got wind of the computer and its contents earlier than people thought and finally made his decision late.

      • Yea a total BS “story”… They’ve known about that computer since September. But that is besides the point…

        He didn’t even have a warrant to look at the email files on the computer when he wrote the letter, so why the heck did he speculate (and that is what he basically did) about what MIGHT be in there pertaining to HRC to his letter to congress.

        There is only one reason, and it is the reason he should be indited for violation of the Hatch Act. His undeniable guilt in this matter is easily proven by Giuliani ‘s blabbing two days before the letter was sent.

  13. General Flynn, a Trump surrogate, and others have questioned how the FBI could have reviewed the 650,000 emails on the Weiner/Abedin laptop in the short time it took them to claim they had done so:

    Edward Snowden Shows Just How Fast The FBI Could Read Hillary Clinton’s Emails
    “ ‘Old laptops could do it in minutes-to-hours.’

    ” ‘Edward Snowden Verified account ‏@Snowden
    @jeffjarvis Drop non-responsive To:/CC:/BCC:, hash both sets, then subtract those that match. Old laptops could do it in minutes-to-hours.’

    “If Snowden is correct, the real question isn’t why the examination of the emails was over so quickly, it’s why it took so long to clear up the mess Comey made with his Oct. 28 letter to Congress.” [Emphasis added]

    http://www.rvtrader.com/listing/2007-Keystone-MONTANA-3075RL-120019309

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