The e-mail “scandal:” Was James Comey ethical?

I read James Comey’s very public statement on the FBI investigation of Hillary Clinton’s e-mails.

Because I learned many years ago how to read–specifically, how to read the news–I found his statement remarkable for its uncited slurs and pejorative comments:

But on a day of political high drama in Washington, Mr. Comey rebuked Mrs. Clinton as being “extremely careless” in using a private email address and server. He raised questions about her judgment, contradicted statements she has made about her email practices, said it was possible that hostile foreign governments had gained access to her account, and declared that a person still employed by the government — Mrs. Clinton left the State Department in 2013 — could have faced disciplinary action for doing what she did.

Everything I bolded was Comey’s snarky opinion, free of fact, never mind legal concepts; the Times paragraph above, repeated the opinions, free of fact or fact-checking. (And, yes, my use of the word “snarky” to modify the word “opinion” is my opinion.)

Words and phrases like “extremely careless,” “possible,” and “could have,” among many others, are pejorative. That is, Comey is offering his personal judgments and gratuitous guesses, without citing facts to back them up.

I could go on picking apart everything he said (and the Times reiterated) but much, much more important was my reaction to Comey’s publicly made statement. I wondered whether it was his position, his mandate as an investigator, to make any such public statement at all.

Wasn’t what Comey did unprofessional, over-the-top personal and bitter (he didn’t “get” Hillary on anything so he was going to slap her this way), showboat-ey and not even particularly ethical?

Did government protocols designate him to make this announcement, which in essence was, “Our thorough investigation has found that Hillary Clinton did not do anything criminal in her handling of e-mails and the FBI will therefore not be recommending any further action”?

But I’m not a lawyer so didn’t know for sure.

But Stephen Gillers is a lawyer and, since his specialty is legal ethics, he does know for sure.

Although the Times–which often does consult with and quote from Gillers when publishing an article involving ethics–somehow did not think to refer to him before publishing the news piece about Comey, they did, at least, publish his letter to the editor, which answered all the questions I was asking myself about Comey’s actions.

No other journal I’ve read has picked up on Gillers’ remarks–which I think are the most important commentary on this business. Moreover, they are as clear as clear glass.

I’ve bolded them in their entirety. Here they are:

To the Editor:

James B. Comey, the F.B.I. director, was out of line in holding a press briefing to deliver his verdict on Hillary Clinton’s use of a private server. The F.B.I. investigates crime and reports its findings and recommendations to federal prosecutors, who then decide whether to seek indictments.

The F.B.I. is neither judge nor jury. And it certainly has no business characterizing the noncriminal conduct of subjects of investigation, as Mr. Comey did. Cops, even top cops, should not play this role.

While it may gratify the country to hear Mr. Comey’s independent views on the server controversy, his press briefing sets a bad precedent that can harm the fair administration of justice. Few people under investigation have the resources Mrs. Clinton has to defend herself.

True, Attorney General Loretta Lynch said she would accept the recommendation of Mr. Comey and career prosecutors, but that was not a license for the director to go public. Furthermore, even if Ms. Lynch had given Mr. Comey the sole authority to decide whether to indict Mrs. Clinton, that’s all he should have decided.

Once a decision is made not to indict, a prosecuting agency should say nothing more. Its job is to prosecute crime, and if there is no crime, it should remain silent.


New York

The writer is a professor of legal ethics at the N.Y.U. School of Law.

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