Fbi Under Hatch Act Scrutiny: Law Broken?

In the lead-up to the 2016 U.S. presidential election, FBI Director James Comey announced that the FBI had discovered a trove of emails potentially relevant to the investigation into Hillary Clinton's use of a private email server. This decision sparked outrage among Democrats and Republicans alike, with many accusing Comey of violating the Hatch Act, a 1939 federal law prohibiting certain political activities by government employees. The Hatch Act bars FBI officials from using their authority to influence an election, and with the election just days away, Comey's announcement was seen as a deliberate attempt to sway the race. While the validity of these claims was uncertain, the controversy highlighted the important role of the FBI in maintaining impartiality and upholding the integrity of the electoral process.

FBI Director James Comey's intentions

Comey's intentions in sending the letter have been the subject of much debate. Some critics, including supporters of Clinton and Senate Democratic Leader Harry Reid, accused Comey of using his position to influence the election and casting aspersions on Clinton without sufficient supporting evidence. Reid invoked the Hatch Act in a letter to Comey, suggesting that his actions may have been intended to impact the success or failure of a partisan candidate.

On the other hand, Comey's defenders argued that he was simply fulfilling his duty as FBI Director by providing updates to Congress on an important and highly publicized case. They claimed that remaining silent about potentially significant developments in the Clinton case could have invited a torrent of Republican congressional hearings. Comey himself stated that it was necessary to update his prior testimony to account for new facts about the investigation.

The Hatch Act, passed in 1939, prohibits federal employees from using their official authority or influence to interfere with or affect the result of an election. It is designed to ensure that federal programs are administered in a nonpartisan manner and protect federal employees from political coercion. The determination of whether Comey violated the Hatch Act would ultimately lie with the Office of Special Counsel, an independent agency tasked with policing such violations.

While Comey's intentions may never be definitively known, the controversy surrounding his actions highlights the importance of maintaining nonpartisanship and transparency in high-profile political investigations, especially so close to an election.

Comey's letter to Congress

On October 28, 2016, FBI Director James Comey sent a letter to Congress announcing that the FBI would be reopening its investigation into Hillary Clinton's use of a private email server while she was Secretary of State. This letter came just eleven days before the 2016 presidential election, causing controversy and raising questions about whether Comey's actions violated the Hatch Act.

In his letter, Comey stated that the FBI had "learned of the existence of emails that appear to be pertinent to the investigation" and that the Bureau would be taking "appropriate investigative steps" to review the new evidence. This was a surprising development, as Comey had previously rejected the idea of reopening the investigation. The letter sent shockwaves through the presidential race, as the Clinton email scandal had been a highly contentious issue.

The Hatch Act of 1939 is a United States federal law that prohibits civil-service employees in the executive branch of the federal government from engaging in certain forms of political activity. It is designed to prevent the use of official authority or influence to affect the outcome of an election. The Act applies to the FBI, and any violation can result in penalties ranging from a reprimand to removal from the job.

The timing and content of Comey's letter sparked intense debate. Critics, including Senate Democratic Leader Harry Reid, argued that Comey's decision to make the investigation public so close to the election violated the Hatch Act. They accused Comey of using his position to influence the election and claimed that he applied a double standard by sitting on evidence of ties between the Trump campaign and the Russian government. Richard Painter, the chief White House ethics lawyer under the George W. Bush administration, filed an official complaint, calling Comey's move "an abuse of power." Painter argued that Comey's actions met the criteria for a Hatch Act violation: the potential influence on the election, the lack of a compelling reason for the announcement, and the pressure from those wanting to impact the election.

However, others defended Comey's decision, stating that he had a reasonable position to keep Congress informed of any new developments. Comey himself had indicated in July 2016 that he would provide updates to Congress, and some argued that not disclosing the new information could have led to criticism after the election. Additionally, it was noted that there was no new information or suggestion of wrongdoing in Comey's letter, and the content may not have had a significant impact on the election.

The Obama administration, including White House press secretary Josh Earnest, disagreed with the notion that Comey intended to influence the election. They did not believe that Comey's actions violated the Hatch Act. Comey's decision also drew comparisons to other instances where Hatch Act scrutiny was raised, such as former President Bill Clinton's meeting with Attorney General Loretta Lynch during the original FBI investigation into Hillary Clinton's email server.

The controversy surrounding Comey's letter highlights the challenges of navigating political neutrality, especially in the lead-up to a highly contested election. The question of whether Comey's actions violated the Hatch Act remains a subject of debate, with legal experts weighing in on the interpretation of the law and the intent behind Comey's decision.

Comey's violation of Justice Department practices

In 2019, the Justice Department's Office of the Inspector General released a report concluding that former FBI Director James Comey had violated department policies and his FBI employment agreement. The report found that Comey had retained, handled, and disseminated certain memos documenting his interactions with President Donald Trump in the early days of his administration. Here are the details of Comey's violation of Justice Department practices:

• Comey kept copies of four out of seven memos in a personal safe at his home while serving as FBI Director, which violated FBI policies and his employment agreement.
• After his dismissal as FBI Director, Comey failed to notify the FBI that he had retained the memos and did not seek authorisation to keep them.
• Comey provided copies of the four memos he had retained to his three private attorneys without FBI authorisation, which was a violation of applicable policies and his employment agreement.
• One of the memos Comey kept without authorisation (Memo 4) included information related to the FBI's ongoing investigation of Michael Flynn and alleged evidence of obstruction of justice by Trump. Comey shared this memo with his friend, instructing him to share the contents with a reporter for The New York Times.
• Comey's actions exposed classified information, including the names of foreign countries being discussed by the President, which were classified as "CONFIDENTIAL".
• Comey's failure to safeguard sensitive information and his use of it to generate public pressure for official action set a "dangerous example" for current and former FBI employees.
• Comey had other lawful options to advocate for the appointment of a Special Counsel but instead chose to disclose sensitive investigative information.

While the Justice Department declined to prosecute Comey, the Inspector General's report emphasised that Comey's actions violated established policies and demonstrated a disregard for the protection of sensitive law enforcement information.

Comey's silence during the election

On October 28, 2016, just 11 days before the 2016 US presidential election, FBI Director James Comey sent a letter to Congress announcing that the bureau would review additional emails that could be related to the Hillary Clinton email investigation. Comey's letter stated that the emails had been discovered during an unrelated criminal investigation into former Rep. Anthony Weiner, the estranged husband of Huma Abedin, one of Clinton's closest aides.

The timing and content of Comey's letter sparked intense criticism and debate. Democrats, including Senate Democratic Leader Harry Reid, accused Comey of violating the Hatch Act by making the investigation public so close to the election. The Hatch Act prohibits federal employees, except the president and vice president, from using their official authority or influence to affect the result of an election. Reid argued that Comey's actions revealed a "clear double standard" and accused him of using his position to influence the election. Richard Painter, the chief White House ethics lawyer under the George W. Bush administration, also filed an official complaint, calling Comey's move "an abuse of power."

Comey defended his decision, explaining that he was trying to strike a balance between keeping Congress and the public informed while also maintaining transparency and accountability. He acknowledged the risk of being misunderstood, especially during an election season, but maintained that his motivation was to uphold the integrity of the FBI and ensure public trust. Comey also noted that the timing of the discovery was recent, and he had only been briefed by investigators the day before sending the letter.

The Obama administration, including White House press secretary Josh Earnest, disagreed with the notion that Comey intended to influence the election. They asserted that Comey was not trying to affect the election's outcome. Additionally, Republicans, such as Rep. Trey Gowdy, criticized Reid's accusations, pointing out that Reid did not mention the Hatch Act after former President Bill Clinton's meeting with Attorney General Loretta Lynch, which was seen by many in the GOP as an attempt to sway the original FBI investigation into Clinton's email server.

While the debate surrounding Comey's actions during the 2016 election remains contentious, the ultimate impact of his decision is difficult to ascertain. Comey's letter certainly injected a significant development into the final days of the campaign, but the extent to which it influenced the election results is a matter of speculation.

The Hatch Act's constitutionality

The Hatch Act, enacted in 1939, has faced several challenges to its constitutionality, with critics charging that it limits First Amendment rights to free speech. However, the Supreme Court has twice upheld its constitutionality, in 1947 and 1973, and has several times declined to hear challenges to the Act.

In United Public Workers of America v. Mitchell (1947), the Court balanced the rights of individuals to free speech with the "elemental need for order". The Court deferred to Congress's judgment regarding the amount of political neutrality necessary for federal employees, explaining that the Act left "untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency". The Court also noted that Congress was not unconcerned about its employees and that it had not restricted their right to vote or privately express political opinions.

Justice Hugo Black, a First Amendment "absolutist", led the dissent, arguing that the right to vote and privately express political opinions were part of the broader freedoms protected by the Constitution. He saw no reason to limit the range of freedoms for federal employees.

In United States Civil Service Commission v. National Association of Letter Carriers (1973), the Court again reviewed the Hatch Act and upheld its constitutionality. The Court believed that Congress had enacted a constitutional balance between the interests of an individual employee and the government-employer’s interests in maintaining limitations on partisan political activities. The Court found that Congress used the Act to avoid "practicing political justice" and also to avoid the appearance of currying federal government favour through political activity.

The Court has applied a balancing test between the presumptively valid interests of the government in regulating its employees with the individual’s interests in free speech.

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