Whether FBI Director James Comey broke the law may hinge on whether he had political motivations or was merely doing his job by reviving Democrat Hillary Clinton’s email controversy just days before the Nov. 8 presidential election.
Richard Painter, a chief White House ethics lawyer to former Republican President George W. Bush, on Saturday accused Comey of violating the 1939 Hatch Act when the FBI chief wrote Congress on Friday that more of the candidate’s emails would be scrutinized.
On Sunday, U.S. Senate Democratic Leader Harry Reid wrote to Comey to accuse him of partisan actions that may have broken the law.
The Hatch Act bars government employees from taking part in political activities that include soliciting or accepting donations from a political party and using official authority to interfere with the outcome of an election.
Stephen Vladeck, a professor at the University of Texas School of Law, said, “I would be surprised if this complaint leads to anything significant, but I would also be surprised if Comey’s tenure as the FBI director will not be shortened.”
“Even if he didn’t violate the letter of the Hatch Act, he certainly violated the spirit of the Hatch Act, which should have prompted him to think twice before issuing that letter. Especially because the letter didn’t say anything,” he said.
Little is publicly known about the new email trove. Comey wrote Congress the FBI had yet to determine the significance.
Painter filed his complaint with the independent Office of Special Counsel (OSC) and the Office of Government Ethics. A spokesman for the OSC, which has a specialized Hatch Act investigative unit, declined to comment.
A Hatch Act investigation is an administrative, not a criminal, matter. Penalties may include removal from office, a demotion or temporary suspension, or a civil penalty no higher than $1,000. In cases of high-level officials, the disciplinary decisions on OSC actions are made by the president.
On Monday, the White House said President Barack Obama believes Comey is a man of integrity and is not trying to influence the election by announcing the scrutiny of additional emails.
Jan Witold Baran, a lawyer at Wiley Rein in Washington, suggested it would be hard to construe what appeared to be Comey’s engagement in normal government business as a violation of the Hatch Act.
But Kenneth Gross, former associate general counsel of the Federal Election Commission, said Comey’s letter fell outside the FBI director’s normal duties as there is no legal obligation to disclose details of an ongoing probe to Congress.
Painter’s complaint said that barring extraordinary circumstances, a public communication about a pending FBI investigation involving a candidate for public office so close to an election likely violated the act.
Comey said in an internal memo obtained by news media that even though it is not common to update Congress on the progress of investigations, he felt obligated because he had repeatedly said the probe was completed.
The OSC Hatch Act unit, which usually experiences a surge in complaints during election years, has disciplined 84 employees the last five years, almost a three-fold increase over the previous five years, an OSC 2015 report to Congress said.
Hatch Act violations usually relate to inappropriate electioneering. For example, the 2015 report cited a complaint against a U.S. Agriculture Department official who allegedly asked two subordinate employees to donate to a political action committee supporting Obama’s 2012 re-election.
In a 2016 letter, the OSC found that Secretary of Housing and Urban Development Julian Castro violated the act by advocating for and against presidential candidates during a media interview. Castro called it an “inadvertent error.”
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