With 11 days to go before Election Day, FBI Director James Comey – apparently responsible to no one else in the government – made an unprecedented decision to insert the bureau into the 2016 presidential campaign while early voting was underway. For nine days – Oct. 28 to Nov. 6 – the citizens of this country had virtually nothing to go on but reports attributed to anonymous law enforcement officials.
In an ambiguous letter, sent to some congressional committee chairmen and ranking members on Oct. 28, Comey stated that the bureau had not yet determined “whether or not this material may be significant,” implying that a new development upsetting the presidential campaign might ultimately have no impact on the concluded (as of July 5) investigation into former Secretary of State Hillary Clinton’s classified email. And, indeed, it did not.
Comey had not even read the referenced, separate Anthony Weiner file, in order to determine what might be pertinent or significant to the Clinton case! But he told FBI employees on that same Friday, Oct. 28, that he had felt obligated to send notice to Congress out of an “abundance of caution.” One might add an abundance of hubris.
His vague pronouncements were to dominate the news cycle for the next nine days, sparking renewal of the earlier narrative that Clinton was under federal investigation. It is indisputable that millions of voters went to the polls under a false impression that there was new evidence against Clinton, showing possible criminality.
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In the course of those nine days, Clinton’s widely-reported substantial lead in the polls over Donald Trump was checked. Comey had put his thumb on the scales.
While he disappointed conservatives when announcing on July 5 that the FBI would not recommend charges be brought against Clinton, Comey had taken the unusual step of publicly condemning her behavior as “extremely careless.”
While much of the criticism of Comey’s Oct. 28 intervention broke along partisan lines, almost 100 former federal prosecutors and Justice Department officials of both parties signed an open letter about Comey’s decision to release information about a new inquiry just days before the election:
“Many of us have worked with Director Comey; all of us respect him. But his unprecedented decision to publicly comment on evidence in what may be an ongoing inquiry just eleven days before a presidential election leaves us both astonished and perplexed.”
The first consequence
The political damage had been done, as surely Comey could have anticipated. There was no way to clear up the matter, expeditiously. The bell could not be unrung.
And the stage was set for the specter of a severely divided government after the election – under which there would be no confirmation of a new, ninth member of the Supreme Court.
By not performing due diligence, without at least having taken a peek at the contents of the Weiner file – discovering a blockbuster national security issue directly tied to the former Secretary of State? – Comey went rogue without the approval of Attorney General Loretta Lynch.
The ultimate consequence
It is not my purpose to challenge the electoral vote count that has made Donald Trump the President-elect, although the definitive count is relevant to my main argument:
The extra-constitutional intrusion of FBI director Comey into the presidential election – 11 days before Election Day (only to reverse himself on November 6) – spread the false impression that the investigation into her emails had been re-opened.
The negative news undoubtedly shaved 1-2 points off her eventual totals in several “swinging swing” states where the presidential race proved to be very close – especially in three of those states in the “red corridor” (or wall) running from Pennsylvania to Ohio to Michigan to Wisconsin – and in which vote spreads were to be measured in decimal points.
According to The Washington Post, almost two-thirds of Americans (63 percent) said that Clinton’s “use of private email” had bothered them. Among that group, Trump won 70 percent to 24 percent. Comparable polling figures for individual states are not yet available.
What might have been
The current electoral vote projection is Trump 305; Clinton 233. If Clinton had won Pennsylvania and Michigan – totaling 36 electoral votes – she could have tied Trump in electoral votes, 269-269. If she had won Wisconsin, as well, she would have been elected President by nine electoral votes: 279-259.
In thinking about the latest FBI review that cleared Clinton in the email inquiry two days before the election, consider how many million ballots were cast with the Oct. 28 proclamation of the director prominent in their minds. How many voted early, or mailed in their vote, assuming that a smoking gun was hidden in the thousands of emails on Anthony Weiner’s computer?
Moreover, how many races, down ballot, were seriously impacted by the reckless statement and the imagined implications of the words uttered by the director of the FBI on Oct. 28?
These questions still hang over this election. While their answers are ultimately, definitively unknowable, the consequences of one wrong speculation, now shown to be wholly unfounded, are undeniable.
Under the separation of powers, three institutions have been impacted by the FBI “sting” operation: the Senate, an evenly divided Supreme Court, and the Presidency. High stakes! The “Comey Coup” was a coup against the Constitution.
William E. Jackson Jr., a Davidson resident, was chief legislative assistant to the Senate Democratic Whip from 1974-77. Reach him at