It gets pretty confusing.
On the one hand, James Comey’s FBI was very public about its investigation into Hillary Clinton’s improper evasion of transparency law, because keeping the investigation quiet would have made the FBI appear politicized.
On the other hand, Comey’s FBI seemed to take extraordinary efforts to keep out of the public eye its investigation into the Trump campaign’s sketchy dealings with Russia. Because if that were known, it would make the FBI look politicized.
In both cases, the FBI seems to have veered away from standard operating procedures that had been established over years, for good reason. And in both cases, the very efforts to avoid the appearance of politicization made the bureau seem politicized.
It would be easy to chalk it all up to bumbling by James Comey, but there’s a bigger point here: There was no good way to handle this situation. If both parties’ nominees for president are cutthroat, ethically loose scammers with sketchy international business ties, there is no clean and easy way to investigate them and yet preserve the perception or reality of a nonpolitical investigative agency within the executive branch.
There’s no “by-the-book” way to do this, because the “book” wasn’t written for a political class this corrupt.
Democrats blame James Comey for Donald Trump’s defeat of Hillary Clinton. Comey was very public about his investigation into her unauthorized secret email account on a private server, whose existence she kept from the relevant authorities who were supposed to have access to all of her official records (including emails) as secretary of state.
Not only did Comey make a big deal about announcing the investigation early on, but he basically dredged it back up again for the public days before the election. He announced that the FBI was reopening the investigation because a new trove of emails had showed up on the laptop of Anthony Weiner, the disgraced former congressman and ex-husband of Clinton confidant Huma Abedin.
Why did he go so public with all of this? Comey admitted in his best-selling memoir that it was a contorted attempt to avoid appearing political. He feared that if he reopened an investigation and failed to tell anyone until after the election, or if he delayed reopening the investigation until after Election Day, critics could charge the FBI with trying to protect Clinton until she was over the finish line.
But Clinton wasn’t the only major party nominee under FBI scrutiny over the past few years, of course. Trump’s campaign was also being investigated and spied upon by the FBI. But the Bureau handled that case quite differently.
For the most part, the FBI avoided going public with its investigation and its findings. In fact, they appear to have taken extraordinary steps to avoid any publicity. For instance, why did the FBI use the Foreign Intelligence Surveillance Act, or FISA, to obtain a warrant on suspicious Trump campaign foreign-policy adviser Carter Page?
Law professor Jonathan Turley offered one possible explanation, based on the New York Times’ reporting: “FBI officials consciously decided not to seek conventional criminal warrants or pursue a criminal investigation because it might be discovered and raised by Trump during the campaign.”
That is, to avoid playing politics, the FBI let politics dictate its investigations. Both methods — secrecy around Trump and publicity around Clinton — look very flawed in retrospect.
That’s because there is no good way to handle this. The FBI is part of the executive branch, which in 2016 was under Democratic control. You can’t blame any Trump supporters who react in anger at the idea of an FBI, under a Democratic president, spying on a Republican presidential campaign. You also can’t blame any Clinton supporter for complaining that Comey needlessly publicized every detail of the Clinton investigation (which led to no indictments) while almost completely hiding the Trump investigation (which has led to many indictments).
You can’t detach law enforcement from politics, because elected officials need to be supreme in our republic. So you inevitably have politicization when you are investigating political figures.
What’s the answer? There isn’t a very good one, aside from telling the voters of both parties to go find some better politicians.
