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?
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.