We now know that James Comey’s decision to inform Congress that the Clinton e-mail investigation had been re-opened (If I hear one more Clinton spinner tells me that no case is ever “closed,” even one that is “completed,” I am going to run naked through the Safeway, screaming dirty limericks in pig latin. Be warned.) was “against Justice Department policy,” specifically the policy of “not acting in such a way as could influence an upcoming election.” Comey understood he was violating these guidelines, sources tell us,but felt he was obligated to do so because he had promised members of Congress he would inform them of any further developments related to Clinton’s email server misuse. Thus he sent a letter to F.B.I. employees after alerting Congress of the (possible) new evidence that necessitated re-opening the investigation. In the letter, Comey acknowledged that his actions were unprecedented, but explained that…
I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record. At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression. 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, but I wanted you to hear directly from me about it.
According to the Washington Post, Comey was also concerned that the discovery of the emails would be leaked to the media after he briefed a team of investigators about them, causing the F.B.I. to be accused of a coverup to benefit Clinton.
Some ethics conclusions:
1. Comey’s actions are consistent with an understanding of the Ethics Incompleteness Principle, which is often discussed on Ethics Alarms:
“The human language is not sufficiently precise to define a rule that will work in every instance. There are always anomalies on the periphery of every normative system, no matter how sound or well articulated. If one responds to an anomaly by trying to amend the rule or system to accommodate it, the integrity of the rule or system is disturbed, and perhaps ruined. Yet if one stubbornly applies the rule or system without amendment to the anomaly anyway, one may reach an absurd conclusion or an unjust result. The Ethics Incompleteness Principle suggests that when a system or rule doesn’t seem to work well when applied to an unexpected or unusual situation, the wise response is to abandon the system or rule—in that one anomalous case only— and use basic ethics principles and analysis to find the best solution. Then return to the system and rules as they were, without altering them to make the treatment of the anomalous situation “consistent.”
Assuming that the “policy” is a sensible and ethical one to begin with (though it isn’t), this was an anomalous case. The FBI, and Comey personally, were rightly under intense criticism for their handling of the investigation. Among other puzzling decisions, Clinton’s aides were given immunity for no apparent reason; Clinton’s interview was neither videoed nor under oath; and Cheryl Mills, who was directly involved in the private server fiasco, was allowed to serve as Clinton’s lawyer when she was questioned. The policy was designed to protect the Justice Department and its component from suspicions of bias and partisan complicity, and the inept handling of the investigation had already created those suspicions. When such a policy appears likely to have the opposite effect that it was established for, the rational and ethical approach is to make an exception, which is what Comey did.
2. This was courageous.
3. In ethics, we often find that by not playing ethics chess and making poor, shortsighted ethics-related decisions, we often reach a point where all options are bad. Comey’s (and Loretta Lynch’s) incompetent oversight of the initial investigation made a truly ethical decision now impossible. Comey could not ethically deceive Congress, and by extension the public, by omission. If Clinton was elected and the new e-mails included smoking gun evidence that warranted her indictment, it would appear that the FBI had participated in a cover-up. If he communicated that Hillary wasn’t in the clear yet, she would go into the election under a cloud. No alternative was fair to everyone. He made the most ethical choice among unethical choices.
4. Policies are important, and a member of an organization is ethically obligated to follow a policy, even bad policies, unless it is illegal or clearly results in injustice (especially with a Justice Department policy). This one, which I wasn’t previously aware of, was explained by the The New Yorker :
Traditionally, the Justice Department has advised prosecutors and law enforcement to avoid any appearance of meddling in the outcome of elections, even if it means holding off on pressing cases. One former senior official recalled that Janet Reno, the Attorney General under Bill Clinton, “completely shut down” the prosecution of a politically sensitive criminal target prior to an election. “She was adamant—anything that could influence the election had to go dark,” the former official said.
Four years ago, then Attorney General Eric Holder formalized this practice in a memo to all Justice Department employees. The memo warned that, when handling political cases, officials “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.” To guard against unfair conduct, Holder wrote, employees facing questions about “the timing of charges or overt investigative steps near the time of a primary or general election” should consult with the Public Integrity Section of the Criminal Division.
How is withholding a prosecution or an investigation any less of an interference with an election than going forward with it? It isn’t. This was an unethical, incompetent and arrogant policy at best. The public has a right to know when candidates or office holders, or their aides and appointees, are suspected of wrongdoing, as soon as possible.
5. It is also an especially cynical and hypocritical policy when the Justice Department already acts as a partisan political arm of the White House, which the Obama and Bush departments have to a damaging extent. If a Justice Department has made it clear for eight years that it will enforce the laws regardless of political impact and consequences, as Holder’s and Lynch’s versions have not, then no legitimate suspicion of political motivations will arise.
6. Once Bill Clinton met with Attorney General Lynch just as the FBI’s verdict on Hillary was about to be revealed, any policy to protect the integrity of the process became moot. I have defended Lynch regarding this, but it nonetheless tainted the process. (The incident was analyzed here, here and here.) Comey’s conduct has had to take place in that context. That’s not his fault.
7. Comey made the best and most ethical decision he could, under terrible circumstances collectively created by him, Lynch, Holder, Hillary Clinton, Republicans and pundits who insisted the decision not to prosecute was “rigged” (to use the terminology of the party’s standard-bearer), and Democrats and pundits—and, disgracefully, Hillary— who falsely represented the decision not to prosecute as “exoneration.”
Finally, allow me to quote at length from the long essay I posted about the Clinton investigation here on July 2, 2016. I said then that the essay was important, and I still believe that, though, typically, many more readers were moved to share and comment on my criticism of Heineken saying that its beer “lets a man flip another man’s meat.”
Well, to loosely paraphrase Dorothy Parker, you can lead biased partisans to ethics, but you can’t make ’em think.
Here’s the meat of that essay, “On Loretta Lynch And Fighting Cynicism And Distrust Regarding The FBI Investigation Of Hillary Clinton”:
Paranoia, suspicion, despair, and conspiratorial views of government…are just forms of bias. Bias makes us stupid, and in this case, bias makes us dysfunctional as a people and fearful and miserable as individuals.
Readers of Ethics Alarms know that I reject this particular bias, no matter how much I deplore the wilful ethical breaches of government officials and the mucky character and untrustworthy nature of individuals like the Clintons and Donald Trump. There are good people in government at all levels, and there are lawyers, judges, members of the military, law enforcement officers and elected representatives and leaders whose professional lives are guided by the core ethical principles demanded by their professions. I know many of them personally, and can vouch for this. I continue to believe, not without evidence and justification, that even those who have strayed from the ethical path laid out for them can be brought back, if the public and society insist on it.
If I did not believe that, then I would give up, not just on ethics (which is my profession) and the blog, but also American democracy. Democracy is the one form of government that requires trust to exist….
Partyist hate and the demonization of opposing views and those who hold them, I admit, make trust very difficult. I begin with an assumption that my study of history and American leaders supports completely: no President who has ever served in the office wanted to harm the country. I know some extreme partisans (like conservative radio show host Mark Levin) and irresponsible demagogues (like Donald Trump) have accused Barack Obama of this motivation, and this alone should disqualify them from being considered serious participants in the public policy debate (and needless to say, except apparently I do need to say it and keep saying it, someone who cannot be considered a serious participants in the public policy debate cannot be treated as a responsible choice to lead the nation.) I know, and have chronicled, that Barack Obama, who is a frightening and toxic combination of an incompetent leader and an arrogant one, is the worst kind of catalyst for division and distrust that the nation could have right now. Nevertheless, this is still an ethics-driven system of government, and our leaders can and do rise to the occasion and above political expediency to act in the country’s best interests.
I just wish they would do it more often….
It is not in the country’s best interests for most of the nation to believe that a woman who placed her own financial and political ambitions above the national security of the nation and the integrity of the government she served should be rewarded with a nomination and election as President of the United States. Indeed, it is cultural poison of undetermined potency.
I understand why so many believe “the fix is in” regarding the investigation of Hillary Clinton’s astoundingly stupid and dangerous breach of e-mail policy, protocol and responsibility while at the State Department. Listening to the group I call the Clinton Corrupted—those otherwise intelligent and ethical citizens (relatives, friends, social media addicts, journalists) we all know who continue to ape Clinton’s absurd and insulting mantra that she did nothing wrong despite mountains of evidence indicating that she not only did, but did so intentionally, and to blame a Republican “witch hunt” for suggesting otherwise—can make you feel like you are trapped in “The Invasion of the Body Snatchers.”
…There is ample reason for anyone to be suspicious and cynical. Especially since charges being brought against a pending Presidential nominee would be unprecedented, and because an outgoing Democratic administration has never before taken legal action that could cripple or end the campaign for the same party’s candidate who is counted upon to continue current policies, a scenario where Clinton is indicted seems unlikely, because it is unlikely. Anything happening that has never happened before is unlikely, by definition. Add to this the fact that Democrats blocked accountability for proven illegal acts and gross ethical breaches on the part of Bill Clinton, when he was impeached, and it would be foolish to deny that a pattern exists….
I do not know what will happen. I still find it hard to believe that Clinton will be indicted, and until I see the actual report, I don’t know if she should be.
I do know, however, that as Americans we have to fight our proclivity to be cynical and suspicious of this or any law enforcement effort, because the nation and democracy literally cannot survive it. We must assume that our leaders are doing the best they can; we must assume that the system is not rigged, and that wrongdoers will not be permitted to prosper regardless of their party, class or contacts. When our trust is betrayed, we have an obligation to demand accountability and consequences, and rather than surrender to despair and distrust, do our best to ensure that we can continue to assume the best, and not the worst, of our system, our leaders, and our national character.