James Comey’s Indictment, While Without Merit, Is Part of Comey’s Own Legacy

It was August of 2005, and Jim Comey was delivering a memorable and heartfelt speech in the Department of Justice’s historic Great Hall as he stepped down from his position as deputy attorney general (DAG). Comey compared his obligations as DAG with ensuring that a pond was filled with water—the water, filled to the brim, representing the reservoir of trust the American people had in the DOJ. It was his hope, he said as he finished his speech, that his tenure as DAG had not let any water or trust dissipate from that pond.

Those words struck a chord with me and my colleagues attending the event. Comey’s steady hand had helped transform the department’s ability to respond effectively to terrorism in the wake of the 9/11 attacks; he also strengthened the ability of federal prosecutors like me to respond to the post-Enron accounting fraud scandals. Most important, despite these cataclysmic episodes, unique in our history, Comey helped to bolster the DOJ’s reputation for responding to and addressing any manner of national crisis. In short, the DOJ under Comey, I believe, had met the moment. What was beginning to change, however, was politics, and the way it slowly infected the department’s ability to effectively respond to a crisis.

Now the 20 years that have passed since Comey’s passionate defense of the DOJ’s reputation for robust nonpartisan action seems more like an epoch. Today that same James Comey who had extolled and defended the ideal of equal justice during his time at the DOJ finds himself the object of a grotesque and unfounded abuse of the law as a cudgel to punish political opponents. Last week, he was served a flimsy indictment handed down from an inexperienced and handpicked Trump flunky, Lindsey Halligan, following the president’s abrupt dismissal of her predecessor, who had insisted, correctly, that there were no credible charges to be brought against Comey. The impact of this Mob-like model of prosecution is likely to spread far beyond Comey and other public servants targeted for revenge by the Trump White House.

How exactly did Comey become the poster child for all that’s wrong with the Trump administration’s dismantling of the pillars of democracy? The through line is not that difficult to decipher—though an ironic twist is the active role Comey himself played in his later law enforcement career in dismantling the norms that had been considered vital to an ordered constitutional democracy.

By the time Comey was nominated as FBI director by President Barack Obama in September of 2013, the DOJ had had a particularly bad run and was far less stable than when he had departed. First, starting in 2006, DOJ leaders failed to allow the prosecution of Purdue Pharma and the Sackler family for the criminal conduct that enabled and fortified the opioid epidemic that would come to addict, kill and ravage generations of Americans. Then, post-2009, Obama’s DOJ honchos had punted on prioritizing the prosecution of the myriad Wall Street financial institutions and their executives for the egregious role they played in the predatory lending and valuation schemes that eviscerated the bank accounts and financial stability of tens of millions of Americans during the great financial crises. Festering top-down incompetence and political rot seemed to have permanently infected the upper echelons of DOJ’s appointed elite. Oblivious to the pent-up fury of middle America toward government impunity, incompetence and intransigence that was reaching a boiling point, DOJ’s leadership maintained its spineless status quo as Americans continued seething.

Now, as director of the FBI, Comey would be tasked with investigating a broad swath of domestic and international criminal activity alongside a DOJ that many Americans now viewed as unprepared and unwilling to handle such a task. Comey, keenly aware of the DOJ’s recently gutless performance, would have appreciated the challenge. Plainly, his institutional reputation and massive ego would be put to the test.

But Comey faced—and failed—a very different sort of test, via the presidential candidacy of Hillary Clinton. In early March of 2015— just three months before Trump would descend his golden escalator to announce his own candidacy—The New York Times reported that Clinton had used a private e-mail server to communicate government business while serving as secretary of state. Some 300 examples of these irregular communiqués had surfaced as part of the evidence turned over to the House committee investigating the Benghazi consulate attacks. Of course, an FBI investigation would ensue. The table was now set for a political investigation that would require the level of deftness and rigid adherence to DOJ policy necessary to ensure public acceptance of whatever the outcome proved to be. Comey seemed to possess the perfect combination of experience and gravitas to lead such a high-stakes operation—but he would falter badly.

The FBI’s investigation soon revealed that of the more than 30,000 government e-mails sent on Clinton’s private server, only eight contained top secret information at the time they were sent (though they were apparently not marked as such). An important stipulation here, frequently overlooked in the breathless media coverage of the episode, was that none of those eight messages contained imminent war plans.

In July of 2016, Comey, without notifying his boss, Attorney General Loretta Lynch, announced that he was wrapping up the FBI’s investigation because none of its findings indicated that Clinton possessed criminal intent. This conclusion was inarguably correct, but the problem was that Comey had unilaterally elected to bypass well-established DOJ policy to make the announcement himself rather than first notifying his boss. Comey’s grandstanding earned him a rebuke from the DOJ’s inspector general—but its more crucial legacy proved to be his reversal of DOJ norms under what seemed a naked political calculation.