Congress, Criminal law, Lawyering, Media, Politics

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. FBI director James Comey should resign
    https://www.bostonglobe.com/opinion/2016/10/31/fbi-director-james-comey-should-resign/10IGkgGMy5XKS6Zdw9Lz2I/story.html

    James Comey really messed up.

    The FBI director did not commit some garden-variety mistake. This is not an “oops” moment. For reasons that have more to do with protecting himself from dishonest Republican attacks, Comey committed an overtly egregious and political act that roiled the nation’s politics 11 days before Election Day — and undermined public trust in the nation’s criminal justice institutions.

    And he needs to go…

    As best that can be gleaned from the now torrent of leaks emanating from FBI headquarters, Comey was concerned that news about the e-mails would become public, which might lead to accusations from Republicans that the FBI was covering up evidence of wrongdoing by Clinton.

    Ironically, we know now that FBI agents have been aware of the e-mails for weeks — and yet, somehow, the information didn’t leak out. But for Comey that was too big a personal risk to take.

    While some Democratic partisans would like to believe that Comey, a Republican, is trying to tip the election to Trump, in reality the answer is more clear-cut: He’s covering his own posterior.

    1. edm:

      Comey had no choice and chose what was best for his protection and the FBI’s reputation.

      On the subject of “intent”, I would say that if you smash up 13 Blackberry’s with a hammer to destroy what may have been evidence along with what already was established in Comey’s public speech, intent was clear.

      All of the facts and circumstances are telling.

      A new world order and open borders means the end of America.

      dougkinan@yahoo.com

      1. Comey had no choice? Really? Can you explain how he had no choice? I’d say he was trying to cover his a**.

        I never wrote anything about intent.

        1. edm:

          Yes, I can.

          Comey was in a tough spot. By his own words he publicly revealed and stated ample violations but chose not to bring charges (Petraeus, Cartwright et al). Based on my 30 years of fact-finding experience: a bad decision.

          My guess is that when he learned that his number two man, Andrew McCabe’s wife received $675,000 dollars for her failed political campaign the internal (“furious” FBI agents) and external (family) heat was too much to handle. All he is doing is using the evidence that was available to him in the first place.

          No, you didn’t mention intent, which wasn’t needed anyway. The context is clear. I only mentioned intent to point out that despite many “experts” who talk about intent don’t know what they are talking about or they are ignoring a lot of facts.

          dougkinan@yahoo.com

          2. dougkinan – just to make this more interesting, I heard today that Podesta’s bff at the DoJ will be supervising the case.

  3. Everyone Is Angry at James Comey Now
    The FBI director finds himself targeted not only by the Clinton campaign but also by former Republican officials for his handling of the Hillary Clinton email case.
    http://www.theatlantic.com/politics/archive/2016/10/comey-backlash/505925/

    What does it take to unite former Obama Attorney General Eric Holder, former Bush Attorney General Alberto Gonzales, liberal columnist Paul Krugman, and pitchfork-wielding former Tea Party Representative Joe Walsh?

    In today’s polarized times, it should be practically impossible—but FBI Director James Comey has managed to pull it off. On Friday, Comey sent a letter to the Republican chairs of committees relevant to the investigation into Hillary Clinton’s emails, saying that the FBI had discovered new, pertinent emails.

  4. FBI Director James Comey’s Republican critics are growing by the hour
    https://www.washingtonpost.com/news/the-fix/wp/2016/10/31/meet-the-republicans-defending-hillary-clinton-from-fbi-chief-james-comey/

    Hillary Clinton’s camp pushed back hard against the FBI’s decision to restart its investigation into her use of a private email server 11 days before the election. Part of their pitch: that even some Republicans think FBI Director James B. Comey erred when he told Congress (and the world) about it.

    That may be a smart bet for the moment. Comey’s GOP critics seem to be piling up by the hour.

    On Monday, one of the most conservative members of Congress criticized Comey’s timing. Rep. Jim Jordan (R-Ohio) chairs the hard-line conservative House Freedom Caucus and has been agitating for Clinton to be investigated for perjury related to her use of a private email server.

    But he told told Fox News Radio: “I think this was probably not the right thing for Comey to do — the protocol here — to come out this close to an election, but this whole case has been mishandled, and now it is what it is.”

    Jordan was the first sitting GOP member of Congress to publicly criticize Comey, a Republican appointed by President Obama. But within minutes, others joined him.

  5. James Comey’s Big Mistake
    http://www.nytimes.com/2016/11/01/opinion/james-comeys-big-mistake.html

    Now, thanks to Mr. Comey’s breathtakingly rash and irresponsible decision, the Justice Department and F.B.I. are scrambling to process hundreds of thousands of emails to determine whether there is anything relevant in them before Nov. 8 — all as the country stands by in suspense. This is not how federal investigations are conducted. In claiming to stand outside politics, Mr. Comey has instead created the hottest political football of the 2016 election.

    The Clinton campaign and its supporters are apoplectic. But top federal law enforcement officials from both Democratic and Republican administrations have been just as swift and fierce in their condemnation of Mr. Comey. The Justice Department, of which the F.B.I. is a part, has a longstanding rule against disclosing inflammatory information to the public and even to Congress about an investigation within 60 days of an election, because that might be seen as influencing the vote…

    Mr. Comey appears to have grasped the importance of that rule in some contexts. On Monday, CNBC reported that in early October, Mr. Comey fought successfully to keep the F.B.I.’s name off a government report regarding evidence that Russia was attempting to interfere in the presidential election. He believed the report was accurate but did not want to sign on to it so close to the election.

    Amid all the noise, it’s worth remembering that even if emails with classified information are found on Mr. Weiner’s computer, that may not change Mr. Comey’s decision, announced in July, to recommend against filing charges against Mrs. Clinton, since the F.B.I. has already determined that she did not intentionally mishandle classified information.

    In an election that has featured the obliteration of one long-accepted political or social norm after another, it is sadly fitting that one of the final and perhaps most consequential acts was to undermine the American people’s trust in the nation’s top law enforcement agencies.

    1. edm – there may be a smoking gun in those emails and Hillary, et al. bite the dust.

    2. You’re not fooling anyone, you know. Intent is not needed. She absolutely has been proven to have mishandled classified information, exposed it to anyone who bothered to look at her unsecured server – Guccifer saw something like 10 IPs logged on. At once. She also has been proven to have lied repeatedly about everything every step of the way, to have taken hundreds of millions from foreign governments and agents and sold the favors of the office of Secretary of State.

      Just listing the low points of her scandals takes many pages. It is no exaggeration to say that she has made herself an enemy of the United States within the meaning of the Constitution, nor an overreach to consider her adherents to be guilty of treason by their support of her, nor an unjust punishment to remove them from all government employment, contracts and subsidies, and to disenfranchise them. It is unjust not to do so, I would argue, since the alternative is the planned destruction of the posterity of the Founding Fathers for whom the Constitution was expressly and exclusively instituted. While we perhaps cannot legally banish them, the 13th amendment provides for legally enslaving them, which would probably be kindest, since few of them have any marketable skills.
      (No, I’m not kidding. Yes, you.)

  6. Pingback: Constitutional Law Expert: Comey Did NOT Violate Law By Announcing Email Investigation – World War Times

  7. Di, November 1, 2016 at 12:01 am
    “Attacking Director Comey is a distraction and the only answer to being guilty and maybe now caught. Comey tried to put this away in July. He can’t help there is more potential evidence.”

    Let me state in advance that based on her public behavior alone, I perceive Hillary Clinton to be one of the most dangerous people on earth, and certainly not someone I’d like to see as president of the United States.

    Having established that fact, in addition to my own assessment of FBI Director Comey’s conduct regarding the newly discovered emails on the shared computer, I’ve read quite a few commentaries by others, and the following is the most penetrating and comprehensive critique that I’ve seen. If anyone here can rebut any aspect of it, I’ll appreciate their sharing that rebuttal.

    “President Obama should fire James Comey. He should do so not because of the political consequences of Comey’s actions—although those consequences could be quite severe—but because Comey’s actions show an unacceptable disregard for the safeguards that exist to protect innocents from the awesome power of a federal police force.”
    http://readersupportednews.org/opinion2/277-75/39997-focus-the-case-for-firing-james-comey-americans-have-rights-even-if-they-are-hillary-clinton

    If Obama does not fire Comey (or ask for his resignation), that will be highly significant evidence supporting the Zero Hedge claim (see my comment at 12:26 AM today) that Clinton has fallen out of favor with the Deep State and that Comey was acting as their agent to undermine Clinton when he wrote his letter.

  8. @tnash80hotmailcom commented on Reid Alleges That Comey May Have Violated Federal Law In
    “A big wild card in the other two cases is the difficulty in suing a sitting president.”

    I chuckled aloud when I read this plausibly possible main motivation of our two baggage-laden major-party presidential candidates. 🙂

  9. @slohrss29,October 31, 2016 at 5:53 pm

    “I was curious about the timing of all this information. Here is a pretty good analysis that I posted earlier, now on the Hedge.
    http://www.zerohedge.com/news/2016-10-31/clinton-collapse-only-deep-state-so-precise”

    I usually essentially agree with your perceptive comments, but here I have to strongly disagree with you that ZH has offered “a pretty good analysis.”

    Zero Evidence from Zero Hedge

    This Zero Hedge analysis of Comey’s behavior positing him as an agent of a Deep State faction that wants to prevent Clinton’s election as POTUS offers zero evidence for the existence of such a faction with an agenda at odds with that of the Deep State’s neo-cons:

    “This view overlooks the reality that significant segments of the Deep State view the neo-con strategy as an irredeemable failure. To these elements of the Deep State, Hillary is a threat precisely because she embraces the failed neo-con strategy and those who cling to it. From this point of view, Hillary as president would be an unmitigated disaster for the Deep State and the nation/Imperial Project it governs.

    “Whatever else emerges from the emails being leaked or officially released, one conclusion is inescapable: Hillary’s judgement is hopelessly flawed. Combine her lack of judgement with her 24 years of accumulated baggage and her potential to push the neo-con agenda to the point of global disaster, and you get a potent need for the Deep State’s most prescient elements to derail her campaign and clear a path to Trump’s executive team.”

    The great preponderance of evidence that I’ve seen indicates the ongoing support of Clinton by the only Deep State I’m aware of, and it isn’t anti-neocon by any stretch of the imagination.

    In order to not be merely wishful thinking, Zero Hedge’s assertion here of an anti-Clinton faction in the Deep State is badly in need of some supportive evidence in addition to Comey’s egregiously anti-establishment behavior, which neither the Deep State’s Corporate Media nor the DC Political Class have notably embraced with ardor.

  10. What does Trump have to do with Reid’s nonsense? Reid doesn’t care about justice. It is all Hillary’s fault. She had the illegal server in the first place then hid it then refused to cooperate then destroyed devices and emails. Attacking Director Comey is a distraction and the only answer to being guilty and maybe now caught. Comey tried to put this away in July. He can’t help there is more potential evidence. I don’t think I have heard him respond to Reid’s allegations.

    1. So, what’s the end game here? Are we still supposed to shoot the messenger (with a nuclear strike) just to prove they hacked into the other criminal organization, the DNC? The CIA, NSA, and the 14 other intelligence agencies are hacking everyone everywhere all the time. She has been beyond the law for years, and it might take some unexpected opportunities to shine light where it’s needed.

      This whole Russia thing is a hail-Mary panic play borne of desperation. Time to take out the trash, then look for more trash to take out. If Trump is found to be guilty of whatever felony, he rides the hopper, too. Gotta start somewhere, and about 40,000 fingers point to Clinton. And more fingers to come the way it sounds.

    2. The FBI has already looked at it and found it’s BS. It’s a marketing mail server. It would also be the dumbest imaginable way of contacting the Russians. The background of the story shows the “DNS experts” have access to data that was previously thought to be the exclusive domain of the NSA, but don’t have the least idea how to analyze it.

      The Russian thing is projection, BTW – Clinton approved the sale of a large fraction of US uranium production to a giant Russian company, then took over $2M in kickbacks from the company president through the Clinton Foundation. She’s also trying to start WWIII with the Russians over Syria, because the Russians kill terrorists, while she funds, supplies and defends them. The Russian government has told all their people down to the local level to repatriate all their relatives *immediately*, pull them out of college regardless of any consequences. If Hillary is elected, Putin won’t be waiting for her to take office to make his moves to defend Russian interests, she’s just too reckless and malicious.

  13. At least Harry doesn’t “smell like boiled cabbage, urine and farts.” He just smells like the last 2. He doesn’t like cabbage.

  14. This is typical of Harry Reid (how Professor Turley can respect him I don’t know – baffling).

    Remember his accusation from the Senate floor in 2012 that Romney hadn’t paid taxes in 10 years?

    And then when asked about it a couple of years ago in an interview his response, “Romney didn’t win, did he?”

    Disgusting.

  15. Senator Reid erred when he referred to Comey’s purported violation of the “Hatch Act.” What Sen. Reid meant was to refer to the “HACK ACT,” not the “Hatch Act.”

    Under provision 5 U.S.C. § 89326(c)(7), the Hack Act prohibits a government employee from “us[ing] his official authority or influence for the purpose of exhibiting any form of independent actions that are not consistent with the prevailing political decisions and policies of that government employee’s controlling political party.”

    In short, this means that since the Democrats are in charge of the Executive Branch of Government, and Comey is an employee in the Executive Branch, in order to comply with the Hack Act, Comey must take actions that only a political hack in the Democratic Party would take.

    Under the Hack Act, there is definitely a clear violation because Comey followed a policy contrary to that recommended by his controlling political party.

    1. They’re digging back to 1973 for that first case, which was prosecutors wanting a fishing expedition while enforcing an unconstitutional law. I’d like to be able to hire lawyers as ballsy as he had for that case.

      The second case was total garbage, trying to make him liable for things that developers who licensed his name did. They knew who they were contracting with. The avaricious weasels were whining that he didn’t tell them he had insurance. If they had known that, they would have tried harder (to extort money that they had no claim to) is their argument.

      The third case was with Trump as plaintiff, a former partner switched a big casino deal to another firm, but claimed Trump knew he was getting screwed early enough to toll the statute of limitations. Trump at least hadn’t retained emails, and may have destroyed emails because of the case – or not, email was handled by contractors at first, the earliest in-house server may not have handled all or even most mail at first, then email retention was only a year. The case was dropped anyway at the request of the buyer of Trump’s Atlantic City property, so it’s moot.

      The upshot is this is a guy who is quite savvy about litigation, one I want on my side, on the American people’s side.

      Hillary, on the other hand, has over 33,000 felony counts hanging over her head, and that is for some of the least of her offenses. Every foreign intelligence agency worthy of the name was in her unsecured server, which had the names of active CIA agents and officers listed, among many other highly important state secrets. Under the law, having admitted to all the elements of the offense of exposing, mishandling, and destroying classified material she is not eligible for any US government office. (The statute does not specify conviction is needed for that, though other parts and the language of related statutes do require conviction for other penalties. No, it does not matter how many people vote for her.)

      Even that level of crime isn’t the worst of it: the hundreds of millions of dollars in contributions to the Clinton Foundation from foreign governments and their agents, the documented favorable treatment of donors by Clinton as SoS, the Uranium One deal being just the most flagrant, and that the majority of Foundation money was spent on the Clintons’ lavish habits shows that she is utterly corrupt, and cannot under any circumstances be allowed into high office.

  17. tnash,

    Why Is Donald Trump So Angry at Judge Gonzalo Curiel?
    The tirades against the respected federal judge may have less to do with his ethnicity than with the magnitude of the legal challenges facing Trump.
    http://www.theatlantic.com/politics/archive/2016/06/donald-trump-gonzalo-curiel/485636/

    We’ll start at the beginning. Curiel is presiding over two separate class-action lawsuits about Trump University. One of them, Low v. Trump University, was filed in April 2010 under the name Markaeff v. Trump University. The other, Cohen v. Trump, was filed in October 2013. (A third case brought by New York Attorney General Eric Schneiderman in 2013 is also under way in that state.) Trump is named as a defendant in both cases.

    The plaintiffs in Low and Cohen portray Trump University as a basically fraudulent endeavor, one that promised Trump’s secrets to real-estate success but instead dispensed generic advice for tens of thousands of dollars. They’ve amassed a collection of evidence and testimony that seems to support their claims. Trump strongly denies the allegations and often cities numerous positive testimonials the seminars received from former customers of Trump University.

    In his public remarks, Trump appears to make no distinction between Low and Cohen. But there are crucial differences between the two civil class-action lawsuits. The Low plaintiffs sued Trump University and Trump himself under various consumer-protection laws in California, Florida, and New York—a relatively standard class-action lawsuit.

    Cohen, on the other hand, targets Trump through a provision of the federal Racketeer Influenced and Corrupt Organizations Act, more commonly known as the RICO Act—the same statute federal prosecutors use to bring down mob bosses. In essence, Low accuses Trump University of engaging in fraudulent business practices, while Cohen frames Trump University itself as a criminal enterprise with Trump as the orchestrator of a racketeering scheme.

    1. edm……The Trump University lawsuit, the wrongful death and defamation lawsuit against Hillary Clinton, and maybe the lawsuit alleging that Trump committed rape 22 years ago will probably go on and on and on.
      The lawsuit alleging rape may be thrown out, reinstated, etc. But it looks like that lawsuit has the least chance of succeeding.
      A big wild card in the other two cases is the difficulty in suing a sitting president.
      Barring a fairly quick settlement between the parties, these two lawsuits seem likely to be around for years.

  18. tnash,

    Judge Curiel Hands Trump a Fresh Rebuke
    The federal jurist tells Trump he’ll have to abide by settled law—even if that means facing enormous liability in a racketeering case.
    http://www.theatlantic.com/politics/archive/2016/08/trump-university-curiel/494213/

    But there’s also a dark cloud accompanying Trump’s silver lining. Curiel also denied his motion for summary judgment in Cohen v. Trump, a civil RICO case that places Trump at the center of an alleged racketeering scheme through Trump University. That case will now head to trial after the election.

    While Curiel sided with the plaintiffs in the case, his ruling doesn’t mean he agrees with them on the merits. “The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the [jury],” Curiel explained.

    Trump’s desire to quash the case is understandable. A civil RICO judgment against him could impose a significant financial penalty. If Trump lost at trial, the plaintiffs would automatically be entitled to have their attorney’s fees covered by him. Whatever damages are imposed against him would also be “trebled,” or tripled, by law.

    While Trump University isn’t the type of organization usually targeted by the federal RICO statute, which was designed to fight organized crime, Curiel noted the U.S. Supreme Court has interpreted its scope broadly.

    “Ultimately, while Defendant may believe that, as a policy matter, civil RICO ought not be extended to consumer class action cases … it is not for this Court to effectuate Defendant’s policy preferences in contravention of the settled approach of the higher courts,” he wrote.

  20. Dave,

    Following up on your post:

    FBI’s James Comey Opposed Naming Russia As An Election Meddler, Source Confirms
    The revelation raises questions about his handling of the matter of Clinton’s emails.
    http://www.huffingtonpost.com/entry/james-comey-clinton-emails_us_5817b25de4b064e1b4b456f4

    The statement that Comey declined to sign off on ultimately went forward anyway. On Oct. 7, the Department of Homeland Security and the Office of the Director of National Intelligence stated: “The U.S. intelligence community is confident that the Russian Government directed the recent compromises of emails from US persons and institutions, including from US political organizations.”

    But Comey’s decision to keep the FBI off the statement ― out of concern for the electoral impact it might have ― has taken on new significance in light of his handling of a separate matter involving Democratic presidential nominee Hillary Clinton.

    1. edm – HuffPo is in bed with Hillary. They will write whatever she or Podesta want.

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