Four days after losing the presidency to Donald Trump, Hillary Clinton spoke about the result. Conceding “there are lots of reasons why an election like this is not successful,” the Democratic candidate cited as one significant factor FBI Director James Comey’s letter to Congress, 11 days before the election, alerting it to a renewed investigation of her emails. Clinton said the letter “raised doubts” about her candidacy over “groundless” and “baseless” charges that the bureau had already investigated and dismissed. The effect was to stop the momentum she had enjoyed coming out of the third debate, Clinton said, and a follow-up letter on the Sunday before the election — essentially clearing her again — served to energize Trump voters who had been whipped into a frenzy by charges of a “rigged” election. Some commentators on both the left and right have dismissed her comments as an attempt to deflect blame for her failed candidacy. But to the degree her analysis has merit — and many commentators agree with it — the episode raises questions about the FBI’s potential to meddle in electoral politics. These questions are especially troubling in light of the history of the bureau.
The election of 2016 was a close one, and one of only five elections in U.S. history in which the victor lost the popular vote but won the Electoral College. As things now stand, Clinton appears to be on track to win a significant popular-vote margin. A week after Election Day, her lead had passed 1 million, the largest margin ever for a candidate who lost the electoral vote. Trump won the key states of Michigan, Pennsylvania and Wisconsin by a percentage point or less; a shift of a little more than 100,000 votes among the three would have given the presidency to Clinton. There are any number of plausible explanations for the outcome, including the Democrats’ moderation on blue-collar economic issues, the candidates’ weaknesses and strengths, gender bias and the state of the economy. Any one of those elements alone in the larger equation of the 2016 election could easily have swung things in one candidate’s favor or the other.
But the role of the FBI and its director should not be dismissed. Comey’s actions, while unprecedented, are not out of keeping with the bureau’s troubled history of playing politics, going back to its most famous, and infamous, director, J. Edgar Hoover.
It is well known that Hoover held tremendous power and used it (obsequiously and coyly) to advance his own bureaucratic and political interests. In reports to the White House and in quiet leaks to trusted reporters and members of Congress, Hoover helped undermine President Truman’s policies during the Cold War, spread rumors about the sexual preferences of Democratic candidate Adlai Stevenson and ambassadorial nominee Charles Bohlen, and supported the efforts of the Red-baiting Sen. Joseph McCarthy (R-Wis.), the House Un-American Activities Committee and Rep. (later President) Richard Nixon. But Hoover was always careful not to comment publicly on ongoing investigations. In 1965, a mother and teacher in Michigan wrote to ask Hoover to investigate the rumor that the pop song “Louie, Louie” contained obscenities in its (virtually indecipherable) lyrics. While the FBI was indeed investigating — obscenity and pornography being among Hoover’s personal obsessions — the director nevertheless replied very clearly that he was unable to comment about FBI probes.
In another example, FBI Assistant Director D. Milton Ladd in July 1950 testified in executive session before a Senate committee about the threat “sex deviates” posed to the U.S. He prefaced his remarks, as everyone in Hoover’s FBI always did to outsiders, by stating bluntly: “The FBI has always been reluctant to make recommendations or to express conclusions or opinions which might be interpreted as recommendations.” He then went on to speak generally about “sex deviates.” Officials of the Hoover FBI knew well that anything they said outside the walls of FBI headquarters, whether about an ongoing investigation or apparent conclusion of a matter, carried significant weight and, as such, could have enormous consequences, for good or ill. Thus, Hoover’s FBI was careful with public relations — it was Hoover who crafted the meme of FBI agents being upstanding, objective and scientific investigators — while managing its political machinations quietly and behind the scenes.
That was a practice Comey apparently abandoned, in publicly discussing the investigation into Clinton’s emails at least five times during this year’s presidential campaign. The first time was in May, after Clinton characterized the bureau’s efforts as a “security review.” Comey unnecessarily corrected her to assert that the it was, indeed, an “investigation.” In July, Comey announced that the FBI had concluded the probe with the recommendation that no charges be brought against her. But rather than stopping there — as his predecessors might have, following the bureau’s practice — he offered his opinion that there were “potential violations” in how Clinton handled classified information. He compounded these unprecedented comments in testimony to Congress two days later, and shockingly offered legislators access to FBI agents’ investigative notes. While defending his conclusion that no charges be brought, he continued to editorialize about Clinton and characterized her actions as exhibiting “great carelessness” of the sort that would have led to administrative punishment for an FBI employee under similar circumstances. Then, just 11 days before the election, long after the issue had been seemingly put to rest, Comey resurrected it with his vague letter to Congress about new emails that “appear to be pertinent to the investigation.” His final commentary came just two days before the election, when, after nine days of political upheaval, he suddenly cleared Clinton again.
The nation was left wondering why. As a historian of the FBI, I am left slack-jawed. Never, not even under Hoover, has the FBI commented on anything like this in such a public manner. What explains Comey’s actions? It is difficult to know without a paper trail and interviewing Comey himself, but some context might help explain it.
Comey is a Republican who has a history of clashes with Bill and Hillary Clinton. He worked as a special counsel in the 1990s for the Senate Whitewater committee investigating the Clintons’ real estate deals. In the course of that heavily politicized investigation, Comey and the committee came to some definite conclusions about Hillary Clinton: that she was uncooperative and not forthcoming with documents. Comey was subsequently appointed U.S. attorney for the Southern District of New York. When President Clinton pardoned the financier Marc Rich in the last days of his presidency, Comey — who had worked earlier on the Rich tax-evasion case, trying to return the fugitive from Switzerland — described the pardon as “shocking.” Comey then opened an investigation into whether Rich and others on his behalf had donated money to the Clinton presidential library and to Hillary Clinton’s Senate campaign, but found no wrongdoing. When reporters asked about this, Comey, revealingly, said he could not comment, as no charges were brought. But this year, with the power and independence he wields as director of the FBI, he volunteered his damaging assessment. It is hard to escape the conclusion that he holds some underlying negative perceptions or political bias about the Clintons shaped by his experience with them.
Yet it isn’t as simple as this, however, because Comey clearly also has bureaucratic and personal interests at stake. The Trump campaign loudly protested the impropriety of Attorney General Loretta Lynch’s infamous airport meeting with Bill Clinton while his wife’s emails were under investigation, leading Lynch to recuse herself from the decision on bringing charges. This essentially left the disposition of the matter up to Comey, who has enjoyed a reputation for independence dating back to his 2004 opposition to George W. Bush’s illegal NSA surveillance program, which he backed up with a threat to resign as deputy attorney general. When Comey cleared Clinton in July, Trump denounced the director as part of a “rigged system” that had “let her off the hook.” Comey now had a bureaucratic reason to protect both the FBI’s reputation for independence and his own. Perhaps he felt he had to comment, however foolishly, to protect both interests — while simultaneously, and perhaps subconsciously, viewing Clinton’s actions in the worst light. It’s even possible to speculate that some agents detected open partisanship in Comey’s public statements and were moved to follow what they took to be his lead, and leak damaging information about Clinton themselves.
Comey seems to have been acting out of some combination of partisan, bureaucratic and personal motives. But whatever his motivation, his comments strike me as unethical at a minimum, and at worst, a violation of the Hatch Act, the law forbidding federal officials from influencing elections. To rise to the level of a crime requires intent, but even absent intent, he was, in my view as an FBI historian, surely reckless. Certainly Comey’s repeated editorializing on Clinton during an election had no precedent — not even during Hoover’s tenure. Even Hoover would not have done that — a thought that is nothing less than astonishing. Yet far worse is the likelihood that Comey had an effect, possibly a decisive one, on this razor-thin election. From any political perspective, it cannot be acceptable for the nation’s top law enforcement official to play a political role, either open or covert, as it can only ever serve to undermine our democratic republic.
Douglas M. Charles is associate professor of history at Penn State University’s Greater Allegheny campus. He is the author of Hoover’s War on Gays: Exposing the FBI’s “Sex Deviates” Program, The FBI’s Obscene File: J. Edgar Hoover & the Bureau’s Crusade Against Smut, and J. Edgar Hoover & the Anti-interventionists: FBI Political Surveillance and the Rise of the Domestic Security State, 1939-1945.
Follow Douglas Charles on Twitter at: @DouglasMcharles.