In a terse Op-Ed published in today’s New York Times, Richard Painter, the chief White House Ethics Lawyer in the Bush Administration from 2005-2007, explains why he filed a Complaint yesterday against FBI Director James Comey with the Office Of Special Counsel, an independent Federal investigative agency which investigates possible violations of the Hatch Act (among others), and the Office of Government Ethics. In particular, Painter explains why Comey’s inexplicable actions this week may warrant prosecution for abuse of power under the Hatch Act.
I have spent much of my career working on government ethics and lawyers’ ethics, including two and a half years as the chief White House ethics lawyer for President George W. Bush, and I never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.
Painter, a former George W. Bush, Marco Rubio and John Kasich supporter, explains that had the Bureau made a similar public disclosure in connection with an investigation of ties between a certain presidential candidate and hacking of Americans’ emails by the Russian government, it would have equally constituted a breach of longstanding policy and an abuse of power. Specifically, the Hatch Act bars the use by a government official of his position to influence an election. Notably, whether one has a specific “intent” to do so is irrelevant:
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.
Painter recounts the known history in establishing the basis for his Complaint:
On Friday, the director of the F.B.I., James B. Comey, sent to members of Congress a letter updating them on 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 on Saturday, 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, at a time 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. Such violations are of even greater concern when the agency is the F.B.I.
Painter takes pains to explain that this is not a joke:
The FBI’s job is to investigate, not to influence the outcome of an election
Painter comments that absent highly extraordinary circumstances, Comey’s conduct does rise to the level of a Hatch Act violation and also may violate a prosecutor's obligations under the Rules of Professional Conduct. He emphasizes that neither Comey’s actions, whatever their motivation, nor Painter’s action in filing such a Complaint, are something to be taken taken lightly:
This is 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.