Amidst the furor following the FBI and Justice Department’s decision not to charge Hillary Clinton for the handling of her State Department emails, there has been much less attention paid to the important point made by former DOJ spokesman Matt Miller that FBI Director James Comey violated the practice and rules of the Justice Department in his press conference. Examination of two historical examples of investigations of high government officials supports Miller’s criticism of Comey’s “willingness to reprimand publicly a figure against whom he believes there is no basis for criminal charges” as threatening fundamental notions of due process in government investigations.

Miller’s prediction that Comey was “inserting himself into the middle of a political campaign” was borne out during the House Oversight Committee’s hearing on July 7 questioning Comey about his decision. While one side engaged in an effort to persuade Comey to say negative things about Clinton (presumably in sound bites appropriate for political campaign ads), the other emphasized Comey’s Republican credentials in deciding that there were no grounds to bring criminal charges against Clinton. While Comey endeavored to stay above the fray, at least in his demeanor, we were left with the extraordinary situation of the Director of the FBI giving his opinion about the actions of the Democratic nominee for President. 

Comey opened the door to this spectacle at his press conference when he did not confine himself to laying out his decision to recommend against charging Secretary Clinton. (Miller makes an important point about the FBI’s recommendations usually being non-public in order to preserve the Justice Department’s independence to respond to them. Given the unique circumstances of this case and the extraordinary public interest in the FBI’s recommendation, making that recommendation public seems reasonable.) Comey described the FBI investigation and announced his recommendation. But he also took the extraordinary step of laying out some the “facts” they found, offering his opinion that Clinton had been “extremely careless” in handling classified information, stating that while they found no direct evidence, it was “possible” that hostile actors had gained access to her account, and finally suggesting that her actions merited some kind of administrative sanction. Having offered his opinions and disclosed the FBI’s factual conclusions, Comey was in no position to protect the integrity of the investigative process (and the Bureau) by refusing to engage with House members about the factual details of the investigation or even his opinion of Clinton’s conduct. He should have confined himself to an explanation of the law and to discussing the meaning of specific intent.

It is instructive to compare Patrick Fitzgerald’s announcement of  the results of his investigation into the leak which outed Valerie Plame as an undercover CIA agent. Fitzgerald was appointed Special Counsel under Justice Department rules — ironically by Comey, who was then Deputy Attorney General — to conduct an independent investigation into the leak. Robert Novak had named Plame in a story attempting to discredit her husband’s criticism of the Iraq war in 2003. There was enormous public interest in knowing whether the White House had been behind the leak. On October 28, 2005, in a riveting press conference, Fitzgerald announced the indictment of White House aide “Scooter” Libby for obstruction of justice and perjury. That press conference is a model for what Comey’s should have been. While Fitzgerald laid out the facts he had found and charged in the indictment, he was scrupulously careful to go no further and offer any opinion or insinuation about other officials who were suspected leakers but who had not been indicted. He did not name Libby or anyone else as the source of the actual leak to Novak. He repeatedly resisted answering all questions about what he had discovered about the suspected plot by the Vice President’s Office to leak information about Plame in order to deliberately discredit her husband, beyond reciting the facts laid out in the indictment. Fitzgerald explained that he was bound not to discuss further details, citing grand jury secrecy rules. While those rules don’t apply to the FBI’s investigation of Clinton, since apparently no grand jury was empaneled, the purpose behind the rules — to protect the reputations of individuals who are investigated, but not charged — is equally applicable.

Similar issues also arose in 1993, when representatives of the press asked for disclosure of the entirety of the final report by the Iran-Contra Independent Counsel, Lawrence Walsh, which had been submitted to the supervisory court. I was then director of the ACLU’s national security project, and while recognizing that “the public has a right to know what its government is up to, especially when it has engaged in misconduct,” we nevertheless urged the court to withhold portions of the report.

Walsh, as Independent Counsel had indicted and obtained convictions of some former officials; but President George H.W. Bush had then pardoned them, including former Defense Secretary Caspar Weinberger who had been pardoned after being indicted but before being tried. While some hoped that Walsh would write that Weinberger was guilty, we very much objected to any such conclusion. We objected that the government may not “pursue the government’s case in the court of public opinion by releasing reports or statements detailing the results of the of the government’s investigation.” We argued that in the absence of the opportunity to respond to an actual indictment, individuals “would be left without adequate procedural protections to challenge the unresolved charges against them and to restore their reputations.”

That concern about the power of the government to publicly condemn without bringing an indictment applies whether an individual is accused of a crime or of extreme carelessness in handling classified information.

In the case of allegations about “top secret” information, it is especially difficult for an individual to defend themselves, because the information is not public, the individual is not permitted to discuss the information, and there are likely widely varying views about whether it was properly classified. Moreover, Comey seems to have acted without regard to the history of Independent Counsels. The Independent Counsel statute required that counsels issue final reports even if they did not bring indictments. That process, which risked giving the government the power to damage a person’s reputation through public condemnation raised serious due process and privacy issues. The statute attempted to balance the public interest in being informed about government misconduct and individual due process rights by providing a mechanism for individuals named in the counsel’s report to respond and to have their responses included in the report. Nevertheless, as the controversy surrounding the Iran-Contra report illustrated, resolving that tension proved difficult. In 1993, we had urged one bright line (no government allegations of criminal conduct without an indictment) and proposed evaluating the propriety of any report by looking in part at whether it went beyond factual recitations of the underlying events. But the inherent tension between asking a government prosecutor to make a public report outside any indictment and protecting individual rights contributed to Congress’ decision not to renew the statute. Congress eliminated the authority of government investigators to “report” about individuals whom it does not indict.

It goes without question of course that public scrutiny of Clinton’s handling of her email server is appropriate. But criticism by the Director of the FBI is fundamentally different in its impact, even though it is outside his job responsibilities and arguably his competence. Just as a prosecutor should not accuse someone of a crime who is not being indicted, the FBI director has no business publicly criticizing officials or others who are not being indicted.

A final note about the dangers of factual presentations, like Comey’s, which are not tethered to the allegations of an indictment. While Comey’s presentation gave the appearance of a complete and unbiased presentation of the “truth,” it has since become clear that his recitation was materially incomplete. At his press conference, Comey stated that a small number of the emails sent through Clinton’s email server bore classification markings at the time they were sent. Clinton’s political opponents immediately seized upon his statement as evidence that she had lied when she had denied that any emails on the server had been classified. Only later after being questioned by Clinton’s political supporters, did Comey reveal that it was perhaps an exaggeration to say that the emails had been so marked. Comey confirmed that the emails had not included the markings to indicate classification to a reader, including the required header stating a document is classified. The few emails at issue had only included the notation “(C)” — for confidential — in the body of the  emails. Nor is it even clear whether even the marked paragraphs were properly deemed confidential at the time, a not insignificant question given the absurdities and inconsistencies of the classification system. Public debate and resolution of such disputes is simply not the FBI’s job.

Constitutional rights and the independence of the FBI and federal prosecutors are best preserved by requiring the FBI to stay within their assigned responsibilities: in this case to investigate and make recommendations about federal criminal charges.