Justice officials warned FBI that Comey’s decision to update Congress was not consistent with department policy

October 29, 2016

Senior Justice Department officials warned the FBI that Director James B. Comey’s decision to notify Congress about renewing the investigation into Hillary Clinton’s private email server was not consistent with long-standing practices of the department, according to officials familiar with the discussions.

The bureau told Justice Department officials that Comey intended to inform lawmakers of newly discovered emails. These officials told the FBI the department’s position “that we don’t comment on an ongoing investigation. And we don’t take steps that will be viewed as influencing an election,” said one Justice Department official who spoke on the condition of anonymity to describe the high-level conversations.

“Director Comey understood our position. He heard it from Justice leadership,” the official said. “It was conveyed to the FBI, and Comey made an independent decision to alert the Hill. He is operating independently of the Justice Department. And he knows it.”

Comey decided to inform Congress that he would look again into Clinton’s handling of emails during her time as secretary of state for two main reasons: a sense of obligation to lawmakers and a concern that word of the new email discovery would leak to the media and raise questions of a coverup.

The rationale, described by officials close to Comey’s decision-making on the condition of anonymity, prompted the FBI director to release his brief letter to Congress on Friday and upset a presidential race less than two weeks before Election Day. It placed Comey again at the center of a highly partisan argument over whether the nation’s top law enforcement agency was unfairly influencing the campaign.

Here’s what we know about the latest Clinton email controversy

Here’s what happened after the FBI said it would examine newly discovered emails linked to Hillary Clinton’s tenure as secretary of state. (Bastien Inzaurralde/The Washington Post)

In a memo explaining his decision to FBI employees soon after he sent his letter to Congress, Comey said he felt “an obligation to do so given that I testified repeatedly in recent months that our investigation was completed.”

“Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel I also think it would be misleading to the American people were we not to supplement the record,” Comey wrote to his employees.

The FBI director’s surprise disclosure has rocked the Clinton campaign, which appeared to be coasting to victory in the waning days of the election. On Saturday, the campaign’s top leadership blasted Comey’s handling of the matter.

Sounding agitated and angry, campaign chairman and longtime Clinton family confidant John Podesta said Comey’s announcement was “long on innuendo and short on facts,” allowing Republicans to “distort and exaggerate” its message.

“There’s no evidence of wrongdoing, no charge of wrongdoing, no indication that this is even about Hillary,” Podesta said.

Present and former DOJ officials said they were shocked by Comey’s actions.

Comey’s decision to ignore the advice of Justice leadership is “stunning,” said Matt Miller, who served as Justice Department spokesman under then-Attorney General Eric H. Holder Jr. “Jim Comey forgets that he works for the attorney general.”

“I think he has a lot of regard for his own integrity. And he lets that regard cross lines into self-righteousness,” Miller said. “He has come to believe that his own ethics are so superior to anyone else’s that his judgment can replace existing rules and regulations. That is a dangerous belief for an FBI director to have.”

Michael Vatis, a former senior Justice Department official who is now a partner at Steptoe & Johnson, said Comey was probably trying to be transparent. But “transparency is not the foremost value in investigations. Fairness is,” he said.

“His statement has, quite predictably, been blown out of proportion and twisted into a signifier of some momentous discovery, when in fact, the new emails may turn out to reveal nothing new at all,” he said. “That’s not fair to Clinton.”

A 2012 Justice Department memo sent by Holder during the last presidential race said employees “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.”

The memo advised that if an employee was “faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election” the employee should contact the department’s public integrity section “for further guidance.”

The newly discovered emails were found on a computer used by former U.S. congressman Anthony Weiner (D-N.Y.), now under investigation for sending sexually explicit messages to a minor, and top Clinton aide Huma Abedin, who is Weiner’s wife. The couple have since separated.

The last time Comey found himself in the campaign spotlight was in July, when he announced that he had finished a months-long investigation into whether Clinton mishandled classified information through the use of a private email server during her time as secretary of state. After he did so, the denunciation was loudest from Republican nominee Donald Trump and his supporters, who accused the FBI director of bias in favor of Clinton’s candidacy. There was also grumbling within FBI ranks, with a largely conservative investigative corps complaining privately that Comey should have tried harder to make a case.

An expert on legal ethics, Stephen Gillers of New York University School of Law said he was disturbed by Comey’s conduct during this election season.

“Comey’s July press conference was wrong and now he has doubled down,” Gillers said. “The FBI’s job is to gather information for and make a recommendation to DOJ lawyers, not to hold press conferences and characterize the evidence. Tolerating that conduct from an FBI Director sets a terrible precedent.”

But Ronald Hosko, a former assistant director at the FBI, said he believed Comey was pressed into a path of unprecedented transparency over the summer, when Attorney General Loretta Lynch and former president Bill Clinton met on Lynch’s plane as the investigation was in its final stages. Hosko said he believed Comey and the agents who worked the matter were “not guided by politics” and Comey felt the only way he could assure the public of that was to provide an up close work that was actually done.

DOJ officials said that Lynch and Comey did not have a direct conversation about his decision before Comey sent the letter to congressional leaders.

With his letter to lawmakers Friday, Comey managed to unite traditionally polarized partisans in Congress who called on the FBI director to immediately release more information and explain his actions. The calls came from Clinton campaign supporters and the ranking members of key committees whose press releases sounded identical in tone at times to those from Republicans.

Democratic Minority Leader Harry Reid of Nevada demanded more transparency and more information from Comey using the same phrasing as some of his GOP colleagues.

“The public would benefit from more information,” Reid said in a statement released late Friday. “Specifically, the public deserves more transparency from the FBI. Director Comey has a responsibility to the public to provide more information than a three-paragraph letter so that the public can base their opinions on facts, not speculation.”

Meantime, Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee, wrote Comey about the same time Friday evening with a similar request, urging the FBI director to provide more information about the new emails, how the FBI learned of them, and the role of the Justice Department in the process.

“In line with your commitment to be transparent with Congress and the public, I respectfully request that the FBI provide as much information as possible about these new developments without harming the integrity of its ongoing investigation,” Johnson wrote in the letter.

Officials familiar with Comey’s thinking said the director on Thursday faced a quandary over how to proceed once the emails, which number in the thousands and may duplicate some of those already reviewed, were brought to his attention.

While the FBI had legal authority to search Weiner’s laptop for evidence related to his case of sexting a minor, it could not seize emails related to the Clinton server case. That would require a separate search warrant or the consent of the people whose emails were gathered.

Comey had just been briefed by a team of investigators who were seeking access to the emails. The director knew he had to move quickly because the information could leak out.

The next day, Comey informed Congress that he would take additional “investigative steps” to evaluate the emails after deciding the emails were pertinent to the Clinton email investigation and that the FBI should take steps to obtain and review them.

In July, Comey had testified under oath before the House Oversight and Government Reform Committee that the FBI was finished investigating the Clinton email matter and that there would be no criminal charges. Comey was asked at the hearing whether he would review any new information the FBI came across.

“My first question is this, would you reopen the Clinton investigation if you discovered new information that was both relevant and substantial?” Rep. Lamar Smith (R-Tex.) asked Comey during the hearing.

“It’s hard for me to answer in the abstract,” Comey replied at the hearing. “We would certainly look at any new and substantial information.”

In the Friday memo to his employees, Comey acknowledged that the FBI does not yet know the import of the newly discovered emails. “Given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression,” Comey wrote.

An official familiar with Comey’s thinking said that “he felt he had no choice.”

“What would it look like if the FBI inadvertently came across additional emails that appear to be relevant to the Clinton investigation and not at least inform the Oversight Committee that this occurred?” the official said. “What would be the criticism then? That the FBI hid it? That the FBI purposely kept this information to themselves?”

The official said the decision came down to which choice “was not as bad as the others.”

Nick Ackerman, a former federal prosecutor in New York and an assistant special Watergate prosecutor, said Comey “had no business writing to Congress about supposed new emails that neither he nor anyone in the FBI has ever reviewed.”

He added: “It is not the function of the FBI director to be making public pronouncements about an investigation, never mind about an investigation based on evidence that he acknowledges may not be significant.”

In Comey’s note to employees, he seemed to anticipate that his decision would be controversial.

“In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood,” Comey wrote.

Jenna Johnson contributed to this report.