Exoneration First, Investigation Later: Comey Under Fire Over Draft Clearing Clinton Written Before Interviewing Key Witnesses

Below is my column in the Hill newspaper on the recent news about Comey drafting a statement declining to charge Hillary Clinton or her staff before key witnesses were interviewed or evidence reviewed.  The question is why Comey pursued the investigation if he felt comfortable months in advance in drafting the statement.  I do not share the President’s view that this draft shows a “rigged process,”  though some FBI agents have objected to the drafting of the statement in this context.  I take Comey at his word that he did not make up his mind until after all of the evidence was reviewed.  However, the draft does show a markedly different approach to the investigation of the Clinton emails and the Special Counsel investigation of the Trump Administration.

Here is the column:

It is never good when the Justice Department appears to be following the guidelines written by Lewis Carroll as opposed to the U.S. Attorneys Manual. The manual goes into great detail over the need to review evidence, witnesses and culpability before initiating or declining charges.  While there is no rule against drafting a letter exonerating or implicating a target in advance,  former FBI Director James Comey, reportedly drafted a statement declining charges in the Hillary Clinton email scandal in May 2016, before interviewing key witnesses, including Clinton herself. He issued his controversial announcement of no charges two months later.

For many, the timing looks like a weird variation of the Red Queen’s demand of “sentence first, verdict later” from Alice in Wonderland. In this case, it seems like “exoneration first, investigation later.” Notably, when the Red Queen uttered those infamous words, the court was debating whether to read evidence against Alice in the form of a letter. The White Rabbit told the King, “There’s more evidence to come yet, please your majesty,” but the court would have none of it. When the Queen insisted that there was there was no need for such evidence, Alice exclaimed, “Why, you don’t even know what they’re about!”

The same question might have been asked when Comey wrote his statement before actually speaking to the key witnesses. In fairness to Comey, even judges are known to draft opinions before oral argument. Both statements and opinions can be modified in light of new evidence before release. In a House Judiciary Committee hearing last September, Comey insisted that no decision (as opposed to no draft) had been made before Clinton’s July 2016 interview: “If colleagues of ours believe I am lying about when I made this decision, please urge them to contact me privately … All I can do is tell you again, the decision was made after that because I didn’t know what was going to happen in that interview.”

Of course, there were many at the time who questioned whether Obama administration Justice Department officials would truly pursue potential charges against Clinton with vigor and detachment. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sen. Lindsey Graham(R-S.C.) obtained transcripts from the U.S. Office of Special Counsel, a government watchdog agency that launched an investigation into whether Comey violated a federal law against government employees engaging in political activity.

In a highly controversial press conference, Comey announced that he would not refer charges while adding that Clinton and others were “extremely careless in their handling of very sensitive, highly classified information.” While I am inclined to accept assurances from Comey that he did not finally decide on charges until after reviewing all of the evidence, the details from the Clinton investigation hardly support a view of a robust and dogged effort in comparison to the type of investigation of people like Paul Manafort.

In pursuing Manafort, special counsel Robert Mueller has now enlisted an army of investigators, reached a cooperative relationship with staunch Trump critic New York Attorney General Eric Schneiderman, and actively pursued tax and financial dealings far afield of the original Russian collusion allegations. He also ordered a heavy-handed (and unnecessary) “no knock” search in the middle of the night on Manafort’s home.

The Clinton investigation looks like Club Fed in comparison. Clinton and her staff refused to cooperate with State Department investigators seeking confirm any damage to national security. Key laptops were withheld and only turned over after Comey’s staff agreed to destroy the computers after their review, despite the relevance of the evidence to congressional investigations. Comey then cut five immunity deals with key Clinton staff members, including former State Department staffer, Bryan Pagliano, who set up a server in Clinton’s home in Chappaqua, N.Y., and worked for her at the State Department.

Pagliano refused to cooperate after invoking his Fifth Amendment right against self-incrimination and destroyed evidence after being given a preservation order. Those deals raised the concern over a type of prosecutorial planned obsolescence, making a viable case less likely. Once again, the drafting of the Comey statement does not prove that Comey had made up his mind regardless of the evidence. In that sense, it is not conclusive proof as President Trump has tweeted of “a rigged system.” Given the political importance of the investigation and discussion on the campaign trail, Comey may have wanted to have a base statement ready in the system but still subject to change.

It is not the specific statement but the overall context of the investigation that raises obvious concerns over the relative levels of effort. The draft letter reflected a presumption that left the burden on others to shift. It is not necessarily a bad presumption in a system based on the presumption of innocence, so long as it is uniformly followed. However, when Manafort was awoken by a FBI search team in his bedroom recently, it seemed doubtful that a draft letter of exoneration is sitting in Mueller’s computer.

For the public, there remains a concern over the different presumptions shown in such cases. In much the same way, the letter revealed against Alice said, “Don’t let him know she liked them best, for this must ever be a secret, kept from all the rest, between yourself and me.” When Alice maintained that she didn’t “believe there’s an atom of meaning in it,” the King was delighted to declare “If there’s no meaning in it that saves a world of trouble, you know, as we needn’t try to find any.”

Just as we should resist the president’s interjections into the Mueller investigation, we should show equal concern over the independence of the Comey investigation. There is meaning in the Comey draft and it is worth finding out what that meaning may be, even it produces a “world of trouble.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

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