James Comey’s Letter and the Problem of Leaks
by Jeffrey Toobin
The New Yorker, October 29, 2016
http://www.newyorker.com/news/news-desk/james-comeys-letter-and-the-problem-of-leaks?mbid=nl_161031_Daily&CNDID=42301087&spMailingID=9789944&spUserID=MTM0NzEzMDcxMjg0S0&spJobID=1022454583&spReportId=MTAyMjQ1NDU4MwS2
Both F.B.I. Director James Comey’s decision to write a letter to Congress on
the subject of Hillary Clinton’s e-mails and the subsequent leaks from the
F.B.I. are important issues.
Since Friday afternoon, the political world has been convulsed by the
decision of James Comey, the Director of the Federal Bureau of
Investigation, to release a three-paragraph letter to congressional leaders,
announcing that the F.B.I. had found additional evidence that might be
relevant to the investigation of Hillary Clinton for improper handling of
classified information. Was Comey’s letter appropriate, because it disclosed
an important development to Congress, especially since he had earlier told
them that his investigation was complete? Or did Comey’s letter represent
unjustified meddling in the Presidential election, less than two weeks
before election day?
These questions, in a way, miss the point. The issue is not the propriety of
Comey’s letter. The issue is the propriety of Comey’s letter and the leaks
that followed it. It is worth noting, at the outset, that Comey’s letter
said only, "I--n connection with an unrelated case, the FBI has learned of
the existence of emails that appear to be pertinent to the investigation."
Within moments of the release of Comey’s letter, though, government sources
leaked that the "unrelated case" was that of Anthony Weiner, who is being
investigated for sexually explicit correspondence with an underage girl.
Weiner, of course, is the estranged husband of Huma Abedin, a close aide to
Hillary Clinton, and the leaks suggested that the new evidence consisted of
e-mails found on computers that Weiner and Abedin may have shared.
But what was the actual evidence that prompted Comey’s letter, and what do
the e-mails say? The answer depends on the news source. "The emails were not
to or from Clinton," according to the Los Angeles Times. But the Washington
Post said, "The correspondence included emails between Abedin and Clinton."
And, according to the New York Times, "Senior law enforcement officials said
that it was unclear if any of the emails were from Mrs. Clinton’s private
server." This muddled issue is crucial, because if none of the e-mails were
to or from Clinton--who is the person running for President--then this new
chapter of the investigation amounts to very little. (If the e-mails are
duplicates of e-mails that the F.B.I. has already seen, or if they are
simply irrelevant personal e-mails, then the story may also amount to
little.)
No one likes to talk about law-enforcement leaks. Journalists (present
company included) rarely discuss the issue for fear of burning existing
sources or discouraging future ones. If asked, Comey would no doubt affect
to be shocked that leaking was taking place at the F.B.I. But the issue is
critically bound up with the current controversy. The journalistic follow-up
to Comey’s bombshell letter was predictable, even inevitable.
Even if Comey did not specifically make or authorize the leaks himself, he
had to know that they would take place--and he must take responsibility for
them. In other words, Comey wasn’t just releasing a letter. He was beginning
a process that was certain to include many more disclosures from the F.B.I.,
but in the haphazard and deniable form of leaks. The F.B.I. can keep secrets
when it’s in its interest to do so. There are almost never any disclosures
from the bureau’s national-security investigators, who deal with terrorism
and related matters. But when it comes to criminal investigations,
especially high-profile political matters like this one, the bureau has long
been a semi-open book.
Because of Comey’s announcement, the days leading up to the election will
now feature piecemeal disclosures of fragments of the investigation. If
Comey heeds the calls from both the Clinton and Trump campaigns to elaborate
on his cryptic letter, he will likely succeed only in generating more leaks,
as reporters seek to answer the central questions of whose e-mails are at
issue and if they incriminate anyone, especially Clinton. The inevitability
of leaks is one reason why the Justice Department (of which the F.B.I. is
supposedly a part) has a formal policy of avoiding public law-enforcement
activity on the eve of elections. As my colleague Jane Mayer wrote, this
policy exists because the activity itself--like the issuance of indictments
or even subpoenas--can affect the outcomes; but it also exists because the
activity sets off a process that amounts to even greater interference than
the official actions themselves.
On Friday night, Comey sent a peculiar and unusual memorandum to F.B.I.
employees, purporting to justify his decision to write to Congress on the
eve of the election. Alternately self-righteous and self-pitying, the
message portrayed Comey’s decision as obligatory under the circumstances. He
wrote:
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. At
the same time, however, given that we don’t know the significance of this
newly discovered collection of emails, I don’t want to create a misleading
impression. In trying to strike that balance, in a brief letter and in the
middle of an election season, there is significant risk of being
misunderstood...
Comey says that he didn’t "want to create a misleading impression," but that’s
precisely what he did. He had to know that his vague letter to Congress
virtually demanded elaboration from "senior government officials," who would
apply their own gloss, in the form of leaks. The responsibility for the
confusion sown by these leaks, if not for the leaks themselves, belongs only
to Comey. If the outcome of the Presidential election turns on Comey’s
action, that’s his burden, and the nation’s, too.
Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the
senior legal analyst for CNN since 2002.
