The New York Times op-ed – Richard Painter – Did the F.B.I. Director Abuse His Power?
THE F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect.
Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent. It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.
But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress that the candidate was under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.
The F.B.I.’s job is to investigate, not to influence the outcome of an election.
Such acts could also be prohibited under the Hatch Act, which bars the use of an official position to influence an election. That is why the F.B.I. presumably would keep those aspects of an investigation confidential until after the election. The usual penalty for a violation is termination of federal employment.
That is why, on Saturday, I filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics. I spent much of my career working on government and lawyers’ ethics, including as the chief White House ethics lawyer for George W. Bush. I never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.
(For the sake of full disclosure, in this election I have supported Jeb Bush, Marco Rubio, John Kasich and Hillary Clinton for president, in that order.)
On Friday, the director of the F.B.I., James B. Comey, sent members of Congress a letter about developments in the agency’s investigation of Mrs. Clinton’s emails, an investigation which supposedly was closed months ago. This letter, which was quickly posted on the internet, made highly unusual public statements about an F.B.I. investigation concerning a candidate in the election. The letter was sent in violation of a longstanding Justice Department policy of not discussing specifics about pending investigations with others, including members of Congress. According to some news reports, the letter was sent before the F.B.I. had even obtained the search warrant that it needed to look at the newly discovered emails. And it was sent days before the election, when many Americans are already voting.
Violations of the Hatch Act and of government ethics rules on misuse of official positions are not permissible in any circumstances, including in the case of an executive branch official acting under pressure from politically motivated members of Congress. Violations are of even greater concern when the agency is the F.B.I.
It is not clear whether Mr. Comey personally wanted to influence the outcome of the election, although his letter — which cast suspicion on Mrs. Clinton without revealing specifics — was disconcerting. Also disconcerting is the fact that Mr. Comey already made unusual public statements expressing his opinion about Mrs. Clinton’s actions, calling her handling of classified information “extremely careless,” when he announced this summer that the F.B.I. was concluding its investigation of her email without filing any charges.
But an official doesn’t need to have a specific intent — or desire — to influence an election to be in violation of the Hatch Act or government ethics rules. The rules are violated if it is obvious that the official’s actions could influence the election, there is no other good reason for taking those actions, and the official is acting under pressure from persons who obviously do want to influence the election.
Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position. Serious questions also arise under lawyers’ professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.
This is no trivial matter. We cannot allow F.B.I. 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. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.
Richard W. Painter, a professor at the University of Minnesota Law School, was the chief White House ethics lawyer from 2005 to 2007.