Did the F.B.I. Director Abuse His Power? – The NY Times op-ed by Richard Painter

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.

commentaryImagine 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.

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Comments

  • demerwater  On November 1, 2016 at 4:14 am

    “… the Hatch Act, a rule designed to keep government officials from using their authority to influence elections.”
    http://www.nbcnews.com/news/us-news/what-hatch-act-who-comey-other-questions-email-case-n675766
    Mr. Painter declares that the job of the FBI is to ‘investigate’; not to ‘influence’ the outcome of an election. His wording and that of the Act suggests “active” behavior. Mr. Painter then states “The rules are violated if it is ‘obvious’ that the official’s actions ‘could’ influence the election, …” The two words which I emphasized suggest that violation of the Act can be inferred from ‘passive’ behavior. Any and all opinions, such as mine, gain a portal into the discussion.
    My own, and very subjective opinion, is that Mr. Painter has credibly and creditably established himself as an Authority on the subject; but then manipulates words to excuse his thoughts in the final paragraph:-
    “… no trivial matter” … “We cannot allow F.B.I.” … “That is an abuse of power.”
    He sets the stage for massive distraction at a time when there is already too much of it.
    I admire James Comey for negotiating a minefield, with only his own character as guide. My prediction is that he will be fired; or he will resign – because politicians habitually find a scapegoat.

  • Clyde Duncan  On November 1, 2016 at 11:15 am

    Demerwater: I am trying to follow your reasoning ….

    “…… Any and all opinions, such as mine, gain a portal into the discussion. ….”

    Are you a USA Government Official ????

    If that is the case, then fair comment.

  • demerwater  On November 2, 2016 at 5:47 am

    ” …the job of the FBI is to ‘investigate’; not to ‘influence’ the outcome of an election.”
    “The rules are violated if it is ‘obvious’ that the official’s actions ‘could’ influence the election, …”
    The first statement is a condensation of the job description of the FBI.
    The second statement invites performance evaluation from those outside of the Organization – as is happening at present.
    Compare with the Impeachment of President Clinton.
    https://en.wikipedia.org/wiki/Impeachment_of_Bill_Clinton

  • Ron Saywack  On November 2, 2016 at 4:37 pm

    James Comey, in my view, did not breach the provisions of Hatch Act, notwithstanding widespread criticism from both the left and the right for having written the letter Congress. Yes, government officials are prohibited, by the tenets of the Hatch Act, not to make public statements 60 days before a presidential election that might be construed as possibly influencing the outcome of the election.

    But, similarly, had the FBI director known that classified government info might have been compromised and sat on it till after the election, he would have similarly been excoriated for doing so.

    He was in caught between a rock and a hard place, in a catch-22 situation, considering that he had told Congress at the conclusion of the Clinton email investigation that should new info regarding the matter come to light, he would inform Congress.

    Ostensibly, such new info was uncovered on Anthony Weiner’s laptop. So, what should Mr. Comey do, wait till after the election or do what he promised to do?

  • Clyde Duncan  On November 2, 2016 at 5:56 pm

    Ron Saywack: The question is, then …

    Does Comey have the authority to override the law in the instant case ???

    … notwithstanding, it is based on innuendo – NOT fact??

    “Does the FBI Director have the Authority to override the Hatch Act [the law]??”

  • Clyde Duncan  On November 2, 2016 at 9:00 pm

    I was just reading what I wrote again …

    “it is based on innuendo” – “it” is referring to the discovery of emails, which have not been examined and was just foisted on an intentionally misinformed and uninformed electorate …

    – if Comey’s action is not betraying the purpose of the Hatch Act … What is?

    • Ron Saywack  On November 3, 2016 at 2:19 pm

      ” if Comey’s action is not betraying the purpose of the Hatch Act … What is?”

      On the face of it, Clyde, once may assume ” betraying the purpose of the Hatch Act ” or impropriety or a breach of the Act or an implied element of criminality in Comey’s action.

      But in order to successfully litigate a breach of the tenets of the Hatch Act, you’d have to prove intent and that is a very difficult thing to do. As such, it is highly unlikely that a sober judge would convict James Comey should it be brought before the courts.

  • demerwater  On November 3, 2016 at 10:59 am

    I have had reason to familiarize myself with the Pesticide Applicator’s laws in Florida.
    There is an unequivocal statement “The label is the law”.
    What is not so clear are the “Rules”. If I pour some concentrate weed-killer out of a 30-gallon drum into a 2-gallon container, I must label it before placing it on a work truck.
    The only way I have comfortably complied with the law and the rules, is to obtain from the distributor, a label that they put on the drum; and affix it to the 2-gallon container. No inspector has ever found fault with that!
    I am painfully aware of the phrase, “… in excess of the posted speed limit … ” It is measurable and therefore, not open to doubt.
    What “P’s” me “O” is this!!!
    “No matter what the posted speed limit is, it is unlawful to drive your vehicle on a highway at speeds which are greater than a reasonable, prudent person would drive under the same conditions. Speed must always be controlled in a manner which avoids collisions with other vehicles, persons or objects. All persons who drive a vehicle on Florida highways must use due care and follow all legal requirements.”
    That gives the “Investigating Officer” way too damn much discretion.
    It places me in position of impotence. I may as well “assume the position”.
    There was a British racing driver, Mike Hawthorn, who had special skills, driving under wet / icy conditions.
    There was a Guyanese cricketer, Rohan Kanhai, who had lightning reflexes.
    Presumably, the average traffic cop would place all three of us in the same ‘boat’ if we were stopped because “All persons who drive a vehicle on Florida highways must use due care and follow all legal requirements.”
    An inflection point in my development was the play, “Caesar’s Wife” by W. Somerset Maugham.
    My considered opinion is that Mr. James Comey’s behavior in this matter is beyond reproach.
    https://en.wikipedia.org/wiki/Pompeia_(wife_of_Julius_Caesar)

  • Clyde Duncan  On November 3, 2016 at 5:06 pm

    Demerwater and Ron Saywack – I get what both of you are saying – it is very clear to most of us ….

    As Director of the FBI, Comey is held to a different standard – at his [heights] level he is too sophisticated to plead ignorance – he has the resources to consult what effect the timing of the release of the innuendo would have on the electorate

    Comey is expected to know!!

    Oooops – does NOT compute …. in the instant case!

    • Ron Saywack  On November 4, 2016 at 6:21 am

      Federal employees, as previously stated, are prohibited by the tenets of the Hatch Act from being deemed as having been involved in activities that could possibly influence the result of a presidential election.

      As such, a case could be made that the president is the highest-ranking federal employee and thus must also adhere to aforesaid provisions of the Act. President Obama yesterday was on the hustings in Florida and NC campaigning to get Hilary Clinton elected.

      In so doing, he has ostensibly violated the provisions of the Act. As president, he is expected to remain neutral and not meddle in the electoral process. After all, he’s the president of all citizens of the land, not just those who voted for him.

      Accordingly, his meddling is offensive, assailable, hypocritical and repugnant. He’s is expected to be held to a higher standard.

  • Clyde Duncan  On November 4, 2016 at 11:06 am

    Ron Saywack: You come across like a Donald J Trump supporter …..

    The Hatch Act of 1939, officially An Act to Prevent Pernicious Political Activities, is a United States federal law whose main provision prohibits employees in the executive branch of the federal government, EXCEPT the president, vice-president, and certain designated high-level officials of that branch, from engaging in some forms of political activity.

    The law was named for Senator Carl Hatch of New Mexico.

    President Barack Hussein Obama is a Professor of Constitutional Law

    As they say, Ron Saywack, you are entitled to your own opinion; but you are NOT entitled to your own facts.

  • demerwater  On November 4, 2016 at 1:54 pm

    The Act appears to differentiate between “Elected Officials” and “Government Employees”. Here is a quote from my previous link.
    “Elected officials, including the president and vice-president and members of Congress, can campaign for candidates. But they are not allowed to pressure government employees — including FBI agents ….”
    I agree that the Director of the FBI is held to ‘different’ standards; rather than ‘higher’ standards. It must be a real challenge to carry out the duties of his Office. Just try to find out who the guy is answerable to. If you do, I want to know; it continues to elude my simple mind.
    In the meantime I am going to give him a break.

    • Ron Saywack  On November 4, 2016 at 3:30 pm

      You’re correct.

      But the primary purpose of the 1939 Hatch Act was to “Prevent Pernicious Political Activities” by federal employees in the wake of overtly questionable activities by several federal employees to influence the outcome of the 1938 presidential election.

      The exemption of the president, vice-president and certain other top federal officials clearly defeats, not only the spirit but the purpose of the law.

      On a moral and ethical standpoint, the president is expected, notwithstanding the letter of the law, to always remain neutral in the electoral process since he’s the president of all the citizens of the land, not merely those who voted for him.

  • Clyde Duncan  On November 4, 2016 at 4:31 pm

    Ron Saywack: Why are you so confused about President Obama acting in the interest of the people of the United States of America??

    Clearly, Donald J Trump has every intention of acting in his own narcissistic interest and in the interest of white supremacy. Donald Trump has already declared that he would dismantle the USA administration as we know it ….

    While the USA is a super-power, that is a cause for grave concern by the people of the USA and the Rest of the World ….

    An exceptional president, such as Barack Obama, has accomplished quite a lot in spite of the obstructionist Republican-Tea Party white supremacist opposition.

    Donald J Trump was elected as their representative to undo everything President Obama and the Democratic Party has accomplished – while Hillary Clinton has vowed to improve on what was accomplished over the last 8-years.

    Clearly, President Obama is acting in the interests of ALL of the United States of America and the Rest of the World – Obama was elected TWICE – as he said, the first time you may not have been quite sure what you got, but the second time the Republican-Tea Party put up another billionaire at the wicket, while President Obama put up his 4-year track record – and people like you have been arguing the toss ever since then.

    President Obama just told your leader – Donald Trump – to stop whining and make his case to the people.

    I have seen big men who fought World War One and World War Two in tears – before they died – one thing that rings through with me is, after they were asked how could we have prevented this – they said “Do NOT be a bystander!”

    I suppose whining is always an option – and arguing the toss – “but dat’s NOT fair!” is another option ….

    NO SCANDALS after EIGHT YEARS in office – that is a remarkable record by any moral or ethical standard.

    But that is why President Obama was elected TWICE – he is a leader with a backbone who has no intention of being a bystander!!

  • Clyde Duncan  On November 4, 2016 at 5:09 pm

    • Ron Saywack  On November 4, 2016 at 8:38 pm

      “Ronald Saywack: Why are you so confused about President Obama acting in the interest of the people of the United States of America??

      With all due respect, Clyde Duncan, you’re are the one who appears to be confused. Obama is not trying to protect the interest of the American people, rather, he’s trying to protect his own failed presidency and his unenviable legacy.

      He’ll go down in the annals of history as one of the worst occupants of the Oval Office, right alongside George W. Bush.

      The national debt under Bush was doubled from $5.8 trillion to well over $10 trillion. The bleeding has continued unabated under Obama. It is now nearing $20 trillion. What stuff of substance and significance has Obama accomplished in 8 years? Obamacare? That is ignominious, to say the least. What else, the capture of Osama bin Laden? The Iran nuclear deal? Really? What about his promise to dismantle Guantanamo? Mission accomplished?

      In the final analysis, I’m not a supporter of either of these undesirable, unfit candidates. They represent the worst that America has to offer. When all is said and done, there will be another Clinton (Obama) to contend with for the next four years. And that is not a comforting thought, mildly put. With that, my contribution to the above subject matter is concluded. Good night.

  • Clyde Duncan  On November 4, 2016 at 9:13 pm

    How Much Did President Obama Add to the Nation’s Debt?
    USA National Debt Under Obama – by Kimberley Amadeo
    .
    .
    The Balance: https://www.thebalance.com/national-debt-under-obama-3306293

  • demerwater  On November 5, 2016 at 3:36 am

    Just in case there is still interest in the “Hatch Act”, our ‘layman’s’ evaluation of the job performance of the current FBI Director, and things like that; read this!
    http://www.newyorker.com/news/news-desk/james-comey-broke-with-loretta-lynch-and-justice-department-tradition

  • Clyde Duncan  On November 5, 2016 at 11:14 am

    People are still questioning President Obama’s campaign promise ….

    Here is an update from TIME magazine [in part]:

    Obama renewed his call to close the prison in his State of the Union address

    In his final State of the Union address to Congress on Tuesday, President Obama renewed his call to close the Guantanamo Bay prison in Cuba, one of the promises he made repeatedly during his first presidential campaign in 2008.

    “I will keep working to shut down the prison at Guantanamo: it’s expensive, it’s unnecessary, and it only serves as a recruitment brochure for our enemies,” Obama said during the address.

    But shuttering America’s most well-known military prison has proved more difficult than Obama anticipated.

    Guantanamo, which opened 14 years ago, still holds about 93 of the 780 detainees who have cycled through the prison, according to other sources.

    White House Chief of Staff Denis McDonough said on Sunday that Obama will present Congress with a plan to close the prison soon, and he might use his executive authority to do so if necessary before his term ends. However, the Obama administration still faces a series of obstacles, both old and new, that stand in the way of shuttering the facility.

    For one thing, the obstructionist – we will make him a one-term President – Congress recently passed a law banning Guantanamo’s closure.

  • guyaneseonline  On November 5, 2016 at 3:26 pm

    Submitted by The Queens Justice Center
    The Queens Justice Center compared the FBI’s investigation of Hillary Clinton to the agency’s 2010 probe of Richmond Hill activist and attorney Albert Baldeo.

    By Michael V. Cusenza
    A south Queens civic group this week ripped the Federal Bureau of Investigation and Department of Justice prosecutors for what it deemed “glaring and despicable overreach” regarding the renewed investigation into Hillary Clinton and her email usage, and compared the Democratic presidential nominee’s case to that of borough activist and attorney Albert Baldeo.

    “We condemn the unprecedented actions of the FBI’s actions in injecting itself by reopening Hillary Clinton’s investigation on speculation, mere days before the most significant election in the world. The FBI’s job is to investigate confidentially, not to influence the outcome of an election. The Hatch Act bars the use of an official position to influence any election,” Anthony Persaud of the Queens Justice Center wrote in a paper titled “Voters, not the FBI, Must Decide our Next President!” and released on Sunday.

    Baldeo was convicted in August 2014 of six counts of obstructing justice and one count of conspiracy to obstruct justice for tampering with witnesses during the FBI’s probe of alleged campaign fraud by Baldeo. He was sentenced to 18 months in federal prison; two years of supervised release, including three months’ home confinement; and was ordered to pay a $15,000 fine. The Richmond Hill resident was acquitted of three mail and wire fraud charges.

    In the fall of 2010, according to U.S. Attorney Preet Bharara, Baldeo, then a borough Democratic district leader, allegedly participated in a scheme to defraud the City that involved the funneling of multiple illegal campaign contributions to his ultimately unsuccessful campaign for City Council.

    “As voters, we are entitled to a democratic process,” Persaud continued. “Voters in the Richmond Hill community, a microcosm of New York and the USA, had our hopes similarly crushed when the same FBI, who ironically are part of the ‘US Department of Justice,’ upended our efforts to attain recognition and empowerment when civil rights and community activist attorney Albert Baldeo ran for public office in 2010. Rogue FBI agents and US prosecutors fabricated a bogus theory that Baldeo’s use of his own money in a City Council election was a mail and wire fraud scheme – which the jury rejected. By inserting themselves in a routine City Council campaign administrative civil proceeding, they big footed the campaign’s compliance efforts into a major federal investigation that ruined our painstaking efforts to gain a seat in government. Baldeo was convicted of obstructing crimes the jury found him innocent of, an illogical conundrum.”

    Persaud went on to say the “DOJ must convene a special team to independently review whether [FBI Director James] Comey, Bharara and other prosecutors who violate their powers with impunity, are culpable under the Hatch Act, and the over-federalization of our laws. This is an abuse of power, and a dangerous precedent.”

  • Clyde Duncan  On November 5, 2016 at 5:21 pm

    President Obama said: You are NOT paying attention – Don’t BOOOO – VOTE

    Check this out – a few hours ago:

  • Clyde Duncan  On November 5, 2016 at 7:41 pm

  • Clyde Duncan  On November 5, 2016 at 11:56 pm

    The Mahogany Brown of the Staff at Mara Largo …

  • Clyde Duncan  On November 6, 2016 at 12:13 am

    ROAR – Hillary Clinton …
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    .
    .

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