Philip B. Heymann

FBI Director James Comey has told congressional leaders that in an unrelated investigation, his agents found emails that might somehow be relevant to claims Comey had earlier rejected — claims that Hillary Clinton had committed a crime. What should the country make of this? The short answer is that as of now, Comey’s communique signifies nothing, although it is fueling political bombast.

It is of course possible that there will be evidence against any political leader in the future, and it will be the role of the FBI to investigate this evidence without bias. Whether it is a future question about Clinton, or whether it is a question such as those that have been raised about Donald Trump, there is no justification for announcing wholly unsubstantiated suspicions without evidence.

Comey himself wrote to his agency that “we don’t know the significance of this newly discovered collection of e-mails.” In other words, we simply have no way of knowing whether any emails have any relevance to any previous investigation. In that context, the director’s message to Congress cannot sensibly influence anyone’s choice between candidates.

Beyond that, the statement violated written traditions and rules of the Justice Department under both Republican and Democratic administrations. The policies are designed to prevent prosecutors or agents from needlessly interfering in a pending election, and to assure that agents do not unnecessarily release investigative evidence or steps that are harmful to the reputation or privacy of any individual against whom there is too little evidence for a criminal charge.

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These rules are important. My views are shaped by having served in the Justice Department under four administrations. I oversaw the FBI as deputy attorney general, collaborated closely with it as assistant attorney general for the criminal division, and served in the Watergate Special Prosecutor’s Office before that. I brought prosecutions against corrupt congressmen of both parties. I understand independence and what it requires.

Most of the reasons for these rules are clear requirements of basic fairness, but one reason may not be so obvious. The policies keep the FBI in a world of investigations and rules in which it has expertise, and out of a world of politics where its reputation will surely be exploited, as it has been in this case. What we are seeing is the predictable cost of violating these rules: Trump’s purposeful transformation of limited statements into charges of crime that the FBI did not and could not legally make.

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No announcement should have been made about the FBI possibly reviewing new emails until their content, significance, and relevance were established, and unless their discovery provided some basis for reconsidering the director’s prior very clear and public judgment that no responsible prosecutor would treat Clinton’s handling of her emails as a crime. That these standards were not met, and that the FBI does not even claim they were met, are clear signals that no voter should be influenced by the director’s announcement or the way Clinton’s opponents are spinning it.

Philip B. Heymann​served in the Justice Department during the Kennedy, Johnson, Carter and Clinton administrations. He has supervised prosecutions of representatives of both parties.

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