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'The FBI can’t be doing this sort of thing': a Q&A with the U professor who filed an ethics complaint against James Comey

FBI director James Comey
REUTERS/Joshua Roberts
FBI director James Comey

The Hatch Act has been around since 1939, but it never has received so much attention as it has in recent days. 

Much of that attention is because of a University of Minnesota law professor, Richard Painter, who wrote an op-ed piece for Sunday’s New York Times saying that FBI director James Comey was in violation of the Hatch Act when, 11 days before the election, he wrote a letter to members of Congress saying his agency was pursuing developments surrounding the investigation Hillary Clinton’s e-mails.

“This is no trivial matter,” wrote Painter. “We cannot allow FBI or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power.”

The Hatch Act clearly prohibits such actions, Painter says. In addition to his op-ed piece, Painter has filed a complaint against the FBI with the Office of the Special Prosecutor and the Office of Government Ethics. 

Painter is a Clinton backer, but he’s supporting her by default, he says. He’s a lifelong Republican who was the chief ethics lawyer in the George W. Bush administration from 2005 to 2007. In this cycle, his first choice for president was Jeb Bush. When that campaign faltered, he moved on to Marco Rubio. When that campaign faltered, he moved on to John Kasich. When Kasich faltered, he moved on to Clinton.

He’s written several pieces on political and business ethics for the Times and the Star Tribune. He’s also written several books, including “Getting the Government Americans Deserve.”

Painter says he was recruited to the U’s law school following his time at the White House. His spouse is a music history teacher at the university, and the couple has three children. “We love it here,” Painter says of being a Minnesotan. “We’re here for good.”

Painter has been juggling his schedule to do interviews with media outlets from the Canadian Broadcasting Company to MinnPost since his op-ed piece. 

MinnPost: Have you ever met Comey?

RP: I’ve met him and he seems like a nice man. When he decided not to indict Clinton earlier, I thought he’d done the right thing, but I was bothered by some of the things he said at the time. Still, I knew he was under tremendous pressure, so I gave him a pass on that. But now this [the recent letter to Congress regarding the emails]. The FBI can’t be doing this sort of thing. Investigations are supposed to be confidential. Members of the Congress, the President, the public — none of us should be getting daily updates on an investigation. Now, the Democrats are going to be saying to the FBI, ‘What do you know about the Russians and Trump?’ I’m sure they’re investigating but they’re not informing the Congress or the people. The FBI is not supposed to be putting out voting pamphlets. It’s dangerous. Remember, Richard Nixon tried to do that.

MinnPost: So why do you think Comey publicized the FBI’s new investigation? 

Richard Painter
Richard Painter

RP: The pressure’s been on Comey from Republican members of the Congress for a year. For every member of Congress who has feared going down because of what’s happened at the top of the ticket, the e-mails have been seen as a lifeboat.  … They were mad as heck that he didn’t indict Clinton or anybody else. They made him promise he would come back to them with any new information, and that was his fatal mistake. He promised.

MinnPost: What could happen to Comey if he’s actually found in violation of the Hatch Act?

RP: The presumptive policy is to terminate. In my view, though, that’s not what should happen. First, the director should acknowledge he was wrong, that it shouldn’t have happened. But the key is not to get Comey. The key is to make policy clear. The President, the Vice President, the members of Congress can come after political opponents by using the FBI or the Justice Department. We can’t send a message that this is okay.

MinnPost: For the moment, you’re something of a hero to Democrats. Does that seem strange?

RP: There are a lot of Republicans who are furious about how the FBI got dragged into this, too. It’s just a terrible mess for everybody. Republicans know that two can play at this game. Have we created a situation that if Clinton wins, Republicans are going to be nervous about the FBI? . . . Now we have this newest stuff on the FBI releasing the documents on Bill Clinton’s pardon of Marc Rich. I haven’t had time to see what’s behind that. But it’s all just a mess.

MP: Are you getting angry feedback from old Republican colleagues?

RP: Most understand that the Republican Party is in disarray. We’ve really screwed the pooch and what’s sad is that around the country, a lot of good candidates are being hurt by this. I tell some of my old friends that I live in the 2d District in Minnesota and the party’s candidate is Jason Lewis. I say, “We’ve got the only pro-slavery candidate remaining the in the party of Lincoln.” We’ve got a lot of great candidates. Look at Ohio. Rob Portman would have been a wonderful [presidential] candidate. Now he’s fighting for his life to hold his Senate seat. I’m still a Republican. But look at my district. I’ll probably vote for Paula Overby. Independent candidates might do a lot of good at this point.

MP: You’ve written books about ethics in banking, in law, in politics. Are those professions and ethics becoming non-sequiturs?

RP: I get jokes about it all the time. People say, “Those must be pretty short books.” But hopefully, we do understand how important these things are.

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Comments (14)

Perhaps

certain facts are not yet in evidence. Is a written update to a Congressional investigative committee, an update of the nature requested by that committee, truly a violation? Is it?

Did a committee member leak the information? Did the Director? Or, did the Director explain the nature of the letter after the leak?

What if

What if Comey learned of this new information which invalidated his prior testimony and sat on it till after the election. And Clinton wins. Was it a violation of the Hatch act to keep this news secret and help the Clinton campaign? Does this feed the Trump 'election is rigged' narrative?

When the info comes out later how many hearings would the congress schedule to investigate the FBI for partisan behavior in keeping them in the dark when he told them earlier everything was done.

People think like Painter that only the letter to congress qualifies as 'an action' but in fact sitting on this new information is also in itself an action.

A moot point

Comey's letter contained no new information. It simply stated that E mails that might be pertinent to the Clinton E mail investigation had been found. However, this was speculative. Since the FBI didn't have a warrant, the FBI had not read them.
What Comey released was a fact-free letter that was long on innuendo. It fueled a feeding frenzy among the anti-Clinton conspiracy theory crowd while shedding no light on the actual issues.

the investigation was too early to go public

When Comey informed members of Congress, he had no idea what was on Weiner's computer. He had no idea if those emails represented anything illegal or untoward. He didn't know if any of them would shed harsh light on Secretary Clinton.

Having found nothing prosecutable in their extensive and expensive review of Hillary's actual emails, his default presumption should have been there maybe nothing on Weiner's computer that would change anything regarding the closed and completed Hillary email investigation.

Instead, he decided to go public - reveal details of an unrelated on-going investigation because there was a possibility that there was a Hillary Clinton connection. That is not something that should have been made public. Facts and evidence should have been reviewed before the FBI notified anyone at all that they were going to check out some emails on someone's computer who was not Hillary.

Pretty disgusting misconduct by our federal law enforcement professionals. Smells of partisanship, not professional practice.

The Russian hacks

It’s interesting the Professor Painter cites the possibility of the release of information about the investigations of Russian hacking as an example of a consequence of Comey’s letter. This had already happened.

The hacking was investigated by a coalition of government agencies. On October 7, they issued a report that named the Russians. The report came from the Department of Homeland Security and Office of the Director of National Intelligence. Comey was asked to include the FBI as an author, but declined because October 7 was too close to the election. I don’t know if the report specifically named Donald Trump, but he’s been the beneficiary of the hacks, which have focused almost exclusively on the Democrats and the Clinton campaign.

http://www.cnbc.com/2016/10/31/fbis-comey-opposed-naming-russians-citing...

Comey’s letter to the Republicans in Congress about possible Clinton E mails was sent, against the very strong advice of the Department of Justice’s, on October 28, three weeks later. If he had no intent to affect the election, I’m left wondering why October 7 was too close to the election, but October 28 was not.

To Hess and Million

Maybe you should read what Painter said: “This is no trivial matter,” wrote Painter. “We cannot allow FBI or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power.”
I'm sure both of you would be singing a different tune if it were the repubs on the other side. And they could be. That's the point. Painter, in case you didn't read that part, is a Republican. An honest one and a republican of integrity. We could use many more..

Nope

I read what he wrote and I know what his party affiliation is, though his support of Clinton no matter how pragmatic puts some bias on his perspective.

If Comey had done an investigation on trump, like over Trump U or something, testified to congress it was over, and then later learned it was going again, should he keep it quiet? Is your outrage here partisan? Wouldn't you be upset to learn the FBI kept this change in status secret?

You are forgetting the issue here is he said it was over. To congress. and then that changed. I do not envy him having to decide to update them or keep it secret, either decision had downsides. Like Painter you are forgetting that keeping a secret like this would also be an action.

People who are sure there was some political motivation (e.g. Painter) are ignoring the other side of the equation, that is IF something turns up and he hid the investigation prior to Election Day that could also be considered meddling. That is my point. Don't ignore that scenario and it's interpretation just because you think his decision hurts your candidate.

Legitimacy of the election results has already been tossed around as a question, this is unprecedented, announcement after Election Day could add more fuel to that fire. Would some Trump-leaning poly sci professor in the Midwest file an ethics complaint on Comey for violating the Hatch act?

Now if he had announced some new investigation in some other topic, that would have been by precedent indefensible. The outrage would be justified. But he wasn't announcing some new investigation, he was correcting his earlier report on the status of the investigation.

If his agents had tole him when they first knew, months before, this could have been handled more smoothly. Haven't heard much about why that info was not shared with him..

I don't take any pleasure in seeing yet another distracting chapter in this disaster of an election cycle. This country has serious issues and all we hear about is scandal de jour from both sides of the aisle.

Thank you, Mr. Hess,

for your civil retort.

A few notes in response.

(1) Comey’s representation to the committee that he would advise if there was any further investigation of the matter was inappropriate, and he should have retracted it well before last week’s letter.

(2) Comey is 400x more sophisticated in the ways of the political world than I, which rules out his good faith. In five minutes I could have drafted a letter for him to send to the committee that would have fulfilled whatever obligation he had assumed and been bulletproof against claims of innuendo. His letter was guaranteed to create a feeding frenzy against Clinton, and he absolutely knew it.

(3) No, silence does not violate the Hatch Act. Otherwise, every federal employee subject to the Hatch Act would be violating it at every instant, by their words or by their silence.

(4) The entirety of the Clinton “email scandal” is that out of 33,000 emails on her unsecured system that were reviewed, two had the letter “c” indicating some low level of classification. Period. Matthew Iglesias’ recent piece referenced an analysis finding that the media have spent more time on this email “scandal” than on all policy issues, combined. “Corrupt Hillary!” “Convict her!” “Throw her in jail!” For what? Neither Trump nor any of his supporters could give any cogent response to this question. My lord. I’m not a fan of Clinton, but that’s based on an understanding of her economic, foreign policy and national security posture, not loony hysteria.

And no, it’s not “both sides of the aisle.”

Painter's point is that the

Painter's point is that the Hatch Act prohibits the FBI director from intervening in an election. Comey did that putting his promise to vengeful Republicans (who haven't been able to indict Hillary Cllinton on one single thing in more than 30 years of trying) as more important than the illegality of his action less than two weeks before the election. As the cartoon of Comey this week showed him: wearing a button that said "I voted!" I guess. He'd ruined his own reputation, all to satisfy those Congressional Republicans, poor man.

These are emails to and from a Secretary of State of the U.S. (or her aides), after all! We're not talking spies or "leaks" or spread of classified information to those not authorized.

Ah,

but that is exactly what the FBI is talking about. After some months of investigating Anthony W., that separate team discovered something like 600,000 pieces of HRC traffic on his system. Of course they looked closely at this oddity. Knowing Comey had suspended another investigation regarding similar traffic, they sent him a "heads up." That is the chain, regardless of one's preferred sources of editing. This was indeed new information relevant to the investigation Comey shelved this summer. He did what he promised to do under oath to a Congressional committee: he updated them on new developments by formal letter. When that information leaked, he addressed it, most likely to limit much of the disinformation that has spread in spite of
using non-public channels.

Much of this apparently has already settled into "business as usual" status for the FBI. Once opened, a Federal investigation can go wherever information leads, whether to false ends or to new pathways. Anyone who has had even an IRS audit knows this. I'd much rather have a tax audit than an FBI investigation on my personal calendar.
.........................................................................................................................................................................................
MONDAY ADDENDUM: And now Director Comey has again put this case back on the shelf, announcing that these e-mails do not provide new information to further the HRC investigation. They are mostly duplicates of much of what was found in primary investigation. He has followed his Bureau's investigations, updated public information and settled speculation once again, returning Congress to his July findings. The Attorney General has now put her stamp on this decision. Is everybody happy? Of course not.

I just don't buy it

I just can't bring myself to decide that Comey is an idiot. None of these excuses add up. There was never any "there" here, nothing to report to congress in the first place. Comey didn't promise to report ongoing details of any and every FBI investigation so he was never in any ethical "bind" to begin with. These were NEVER Clinton e-mails, these were someone else's e-mails on yet another someone's else's laptop. Comey went out of his way to link this to Clinton.

News flash from Comey to congressional republicans: "Hillary Clinton isn't the only person in the world who uses e-mail". We can find a lot of e-mails on laptops all over the place. Want to check my laptop?

This was payback to republicans for NOT charging Clinton months ago. Sure he was under pressure, pressure to deliver a controversy to republicans, he obviously caved into that pressure. He ignored he colleagues advice as well as agency policy and the law, that's not how an intelligent person handles pressure, that's how an intelligent person deliberately steps on a landmine.

I'm not saying the guys isn't human, and sure this was a complex situation, but the guys been FBI director for three years and all of the sudden now, he can't figure out how to do his job properly? Of all the investigations in the last three years, not mention his entire career, the only one he can't handle with honor and integrity is one involving Hillary Clinton? Suddenly he's confused about the law and agency policy? I just don't buy it.

Fuzzy line

So, now that Comey has come to the same conclusion today that he came to months ago, can anyone tell me why it was appropriate to mention that they were going to reopen things over these "new" emails when it was so extremely important that Comey avoid any amount of impropriety by refusing to point fingers at Russia for email hacks???

Don't get me wrong, I'm not a cheerleader for Hillary, but I'll note that every single Hillary email was provided directly by Hillary. The review of those emails showed nothing that was sufficient to charge her with any crime. Reviews of other people's emails (by the way, Weiner is...well...never mind--let's just say I don't think highly of him--but I suspect that he's being punished with this stuff, too) verified that all the emails were provided. There was NOTHING NEW in this inquiry. SOMEONE was hoping it would last longer, but someone in the FBI managed to put their brain in gear and use modern software to do it in a reasonable amount of time. I'm sure we're going to hear a lot of conspiracy theories over how "quick" it was all done. But high-billing lawyers with budgets that can't accommodate manual document review have already figured this stuff out.

Finally, is it not notable that not a single email from Hillary's server seems to have made it into Russia's hands? I'm sure there's time for that to come out, but the deadline is upon our fine red friends to set into motion their Great American Election coup if they really have anything more.

Acronym Soup

As has been noted, this will forever be remembered as the election in which the KGB, the KKK and the FBI were all on the same side.