For several days, both President Obama and White House spokesman Josh Earnest avoided joining the chorus of denunciations hurled at FBI Director James Comey. They kept their silence, which seemed wise, as other Democrats raised a hue and cried over the decision to inform Congress that the investigation of Hillary Clinton’s emails was up and running again following the discovery of thousands of emails at a new point of exposure.
Whether Obama’s silence was a show of respect for law enforcement and the investigative process, or (more likely) a tactical decision that he would come off the worse for interfering, it was a good idea to avoid interjecting himself into a criminal investigation.
But he has not, in the past eight years, shown himself resolute in sticking to that good principle, and in the end he could not resist. With Clinton’s lead shrinking in the final days of a presidential campaign, and with other Democrats failing to change the story from Clinton to Comey, Obama appears to have decided he had to put his foot in it. So he did.
“I do think there is a norm that when there are investigations, we don’t operate on incomplete information and we don’t operate on leaks,” Obama said, criticizing Comey without actually naming him. “We operate based on concrete decisions that are made.”
Did Comey have to tell Congress that the Clinton investigation was on again? The simple answer is yes, but it requires explanation.
Obama has never shown much respect for the legislative branch, but two facts are worth bearing in mind. First, Congress has oversight authority over the FBI. Second, it was a separate congressional investigation of Clinton’s State Department that had prompted the FBI to investigate her in the first place.
A puzzlingly small number of Clinton’s documents came up in that congressional probe. This was the first sign that she had illegally withheld tens of thousands of emails for years even though they were supposed to have been handed over to comply with the Freedom of Information Act.
So Congress has a vested interest in the Clinton probe, and it goes beyond the partisan interest of Republicans who would like to embarrass her and damage her election chances.
After announcing his July recommendation that no charges be brought against Clinton under the Espionage Act, Comey testified before Congress that the investigation was over. But then the FBI discovered that Clinton’s (possibly classified) communications had yet another point of dangerous exposure. They were on the computer of a disgraced former congressman known for his aggressive solicitation of female attention over the Internet.
Comey thus felt obliged to inform Congress that the portion of his testimony saying the investigation was completed now needed amendment. He had an obligation to correct the record. Had he remained silent, he could rightly have been accused of hiding relevant information from Congress, especially if the new evidence led to post-election legal consequences for Clinton.
Obama chose to involve himself this week because Democrats’ first wave of attacks on Comey failed to shift the focus of the news cycle away from Clinton and onto the FBI’s handling of the matter. The president and his party decided that the situation was electorally precarious enough to require wheeling out the biggest gun in their arsenal.
But Obama’s team will look back on this as a mistake. First, his remarks were inappropriate and probably won’t make the difference in an election anyway. Second, his comments come just as leaks are already creating a perception of infighting between career FBI personnel and political appointees in his Department of Justice whom they accuse of stymying their investigations into Clinton.
As we have noted, a Clinton victory next week will not cleanse her of the stain of scandal that now covers her from head to toe. She isn’t out of the woods yet legally, and her past behavior contains hints that she won’t go long without creating new problems for herself.
So it won’t help Obama’s legacy if he is remembered as the president who tried to cover for Clinton.
