Multiple times in Wednesday’s hearing, James Comey has defended issuing a letter to the Senate less than two weeks before the election to notify them that additional information had appeared concerning Hillary Clinton’s email issue. But his reason for issuing the letter has a fatal flaw—one that contradicts Comey’s own testimony.
As Comey presents it:
- Agents involved in the Anthony Weiner investigation came to Comey and notified him that there was evidence of email on Weiner’s laptop which was “potentially relevant” to the Clinton investigation.
- Though the agents did not have a search warrant and had not looked at the emails, they had examined metadata (how this was done is unstated) that indicated emails sourced from Hillary Clinton’s accounts.
- The agents indicated that there were thousands of such emails. Comey later gave a number of 40,000, though it was unclear if this was all email on the device or only those related to Clinton’s account.
- The agents wanted a search warrant in order to examine the emails directly.
With that situation, it’s what Comey did next that was critical: He asked the agents if the emails could be examined for relevance before the election. Comey claims that the response from the agents was that there was “no way, no way” that the examination could be completed in the 11 days remaining.
Faced with this information, and after some consultation with his staff, Comey issued a letter to Congress to inform them of a change in the status of the case—a letter which Comey admits he knew would be leaked immediately—in advance of examining the emails. Comey paints this as a conflict between “speaking and concealing.” However, that conflict only exists if the intent of the investigation is to affect the election.
The problem here isn’t just the answer to Comey’s question (the agents did, in fact, complete their examination before the election): it’s the fact that Comey asked it at all. Repeatedly during his testimony, Comey stated that he was proud that the FBI acted without regard to the election. When told by one of his staff members that the action might result in the election of Donald Trump, Comey was proud to say that he ignored that information, because the effect on the election couldn’t be considered.
So why was this question even asked? Why not obtain a search warrant and determine if the letters were actually germane to the investigation before notifying Congress members?
At multiple points, Comey kept up the pretense that the investigation was held separate from the election, using the same logic to justify why information about the Trump–Russia investigation was not revealed.
However, Comey allowed the election date to be the determining factor in the action he took. And that decision was entirely his. The fact that he even asked the question shows that, had the agents given a different answer, or had the time until the election been greater, Comey would have considered other actions.
James Comey’s own statement ...
“There’s an election in 11 days, speak would be really bad… conceal would be catastrophic,”
… shows that his decision was decided by the election. His actions were not apolitical and related only to the investigation—they were defined by the election. He acted as he did because he wanted to get the last shot in before Election Day.
- Because the election was close, he notified Congress first rather than checking the relevance of the emails.
- The way in which he made that notification was one he knew would become immediately public.
That’s Comey’s testimony. And that’s a deliberate act.