FBI Director James Comey testifies on Capitol Hill in September.

FBI Director James Comey testifies on Capitol Hill in September. Pablo Martinez Monsivais/AP

Amid the Firestorm Over Comey Come Charges of Hatch Act Violations

FBI chief’s handling of Clinton email probe draws blasts from Democrats, prosecutors.

Fallout from FBI Director James Comey’s dramatic move on Friday to alert Congress to possible new evidence in the Hillary Clinton email probe continued on Monday as the top law enforcement officer came under fire from Democratic lawmakers and numerous professional prosecutors.

At issue is whether Comey’s missives to lawmakers and his own staff—which offered a short-on-details “update” based on discovery of an unexamined batch of possibly related emails—violated the federal Hatch Act as well as Justice Department guidelines on avoiding disclosures of confidential investigations close to an election.

Government Executive interviews with legal specialists suggest that Comey may be in hot water legally as well as politically. Among the fast-moving developments in play on Monday:

  • A letter from Senate Minority Leader Harry Reid, D-Nev., saying Comey appears to have broken the law as well as Justice Department guidance on complying with the Hatch Act;

  • An op-ed from a George W. Bush administration prosecutor announcing that he’d filed complaints alleging Hatch Act violations;

  • A new search warrant granted to FBI investigators to examine Hillary Clinton-related emails found on computers owned by former Rep. Anthony Weiner, D-N.Y., and his estranged wife and long-time Clinton aide Huma Abedin, reflecting an attempt by the FBI to accelerate its inquiry;

  • A letter from four Democratic senators suggesting that many of the newly found emails may be duplicative and demanding that Comey provide additional details on the newly discovered information by Oct. 31;

  • An op-ed from former Obama administration Attorney General Eric Holder saying Comey, “a good man,” made “a serious mistake” and violated “fundamental principles” to the detriment of public trust; and

  • A letter signed by nearly 100 former Justice Department prosecutors and others making the same charge.

Sen. Reid’s argument that Comey violated the Hatch Act also introduced a theme of a “double standard” in updating Congress on what usually are secret FBI probes. “In my communications with you and other top officials in the national security community,” Reid wrote, “it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisers, and the Russian government—a foreign interest openly hostile to the United States, which Trump praises at every opportunity. The public has a right to know this information.”

Those charges, which involve fired Trump campaign manager Paul Manafort, were echoed by House Oversight and Government Reform Committee ranking member Elijah Cummings, D-Md.

Comey’s surprise Friday letter to the chairmen and ranking members of key congressional committees came just 11 days before Election Day and created an impression that the FBI had “reopened” the probe of Clinton it had suspended in July with a conclusion of no criminal indictment.

His Oct. 28 letter said that “due to recent developments, I’m writing to supplement my previous testimony” on whether the FBI’s probe of Clinton’s emails was over, saying the FBI had “learned of the existence of emails that appear to be pertinent to the investigation.” He acknowledged that he didn’t know their contents or whether they contained classified information, nor could he promise a quick answer to such questions.


How well do you know the Hatch Act?

Simultaneously, Comey wrote an internal email to FBI staff announcing the move, saying, “Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed. I also think it would be misleading to the American people were we not to supplement the record.”

What the Hatch Act Says

The agencies that received former prosecutor Richard Painter’s complaints are the Office of Special Counsel—which investigates Hatch Act violations and adjudicates noncriminal remedies—and the Office of Government Ethics, which advises all federal agencies on ethics issues. Neither, in accordance with standard practice, would comment on the case to Government Executive.

Regulations for Hatch Act compliance are written by the Office of Personnel Management, which did not respond to queries by publication time.

The key passage of the Hatch Act, as modernized in 2012 , lives in U.S. Code Title 5, Section 7323 , which says, “an employee may take an active part in political management or in political campaigns, except an employee may not . . . use his official authority or influence for the purpose of interfering with or affecting the result of an election.”

Similar language appears in the latest update in the Code of Federal Regulations. Penalties, which used to routinely extend to job termination, more often today come in the form of reprimands and unpaid administrative leave.

Comey, is a longtime Republican appointed to a 10-year term by President Obama in 2013. Obama has authority to fire him—though White House spokesman Josh Earnest on Monday said he would neither criticize nor support Comey’s move.

The actions of Comey may indeed run counter to the legal language, according to William Cowden, an attorney affiliated with the Federal Practice Group.

“What hurts him is the letter he wrote to FBI internally, in which he says, ‘Of course we don’t ordinarily tell Congress, but we also felt it was misleading to the American people not to supplement the record,’ ” he told Gov ernment Executive . “That is influencing the American people. He didn’t come out and say it, but in a back-handed way it is practically a confession that he would let this out to make sure the American people are not under the impression that the investigation is closed,” Cowden said. “How is that not influencing an election? I have good cause to be concerned.”

John Mahoney, a Washington attorney specializing in federal employment law, also called Comey’s actions questionable. “At issue is what was Comey’s purpose in sending the letter to Congress,” he said in an interview. “My understanding is that the FBI had possession of the emails some weeks prior to his letter. And though I don’t know the contents of the emails, they don’t look that relevant to Clinton from what we’re seeing.”

In Mahoney’s opinion, “it seemed quite unusual for an FBI director to make that implied accusation to congressional committee chairs and ranking members that the FBI had obtained these emails of questionable relevance—why wait a number of weeks to issue it?”

Mahoney expects the complaint now with the Special Counsel—where investigations take many months—and the Ethics Office to also prompt probes by the Justice Department’s inspector general and the FBI’s Office of Professional Responsibility.

Efforts to obtain comment from Republican lawmakers went unanswered. But in an interview Monday with MSNBC, Rep. Trey Gowdy, R-S.C., mocked Sen. Reid’s letter. He criticized Reid for not writing such a letter to Attorney General Loretta Lynch, recalling the controversial surprise meeting between Bill Clinton and the attorney general last summer at an Arizona airport.

“Senator Reid didn’t write a letter to either one of them about the Hatch Act,” he said. “I mean, President Obama is actively campaigning right now for a candidate for president, and that doesn’t violate the Hatch Act,” Gowdy said. “So how Jim Comey supplementing his record before Congress violates the Hatch Act is just laughable.”

As for the charge of an FBI “double standard” in not updating Congress about any probe of the Trump campaign’s possible Russia ties, House Judiciary Committee Chairman Bob Goodlatte, R-Va., said on CNN Monday, “If there are facts available to the FBI that would support an investigation that indicates a violation of the law, then the FBI should follow the truth wherever it leads them.”

Attorney Cowden disagreed with the Democrats’ demand for openness in that instance, saying, “Two wrongs don’t make a right. If an investigation is going on about Trump’s former campaign manager, that investigation should not be publicized—that’s the whole point of grand jury secrecy rules. Investigations oftentimes don’t lead to a criminal indictment,” he said. “If there’s no meat to it, it doesn’t go anywhere. But someone’s reputation could be besmirched by the mere fact of being investigated.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.