(Bloomberg) -- James Comey’s independent streak won him the FBI director’s job. Now that self-assurance has gotten him into a jam that could lose it for him.
Comey has been holed up in his Pennsylvania Avenue office all week after issuing a bombshell 160-word letter to Congress on Oct. 28 saying that investigators were reviewing messages potentially linked to a previously completed probe of Hillary Clinton’s e-mail use.
The 55-year-old director may have so tarnished his agency and angered leaders on both sides of the political aisle that his ability to finish out his term through 2023 is in doubt. Comey’s critics now include Chuck Schumer, the Senate Democratic leader-in-waiting, who had previously praised him and, in 2013, urged colleagues to back him in what was a 93-1 confirmation vote.
“He’s acting in good faith, but he’s acted unwisely,” said Stuart Gerson, a former acting attorney general who signed an open letter with almost 100 other former law enforcement officials this week criticizing Comey’s decision. “He perceives himself as an impeccable moral force, that he ultimately makes the call on things like that,” said Gerson, who served in both Republican and Democratic administrations.
If Clinton loses next week, Democrats will pounce on Comey’s letter as a turning point in the closing days of the volatile 2016 presidential race. Her support in national polls dipped after the letter became public, and the FBI investigation dominated news coverage for days afterward. Comey’s note to lawmakers was seen as too vague by leaders from both parties, and it infuriated Democrats, who accused him of acting recklessly.
Justice Department guidelines against publicly discussing investigations, particularly close to an election, are in place “to maintain the public trust in the department’s ability to do its job free of political influence,” former Attorney General Eric Holder, who served as Comey’s boss from 2013 to 2015, wrote in the Washington Post this week. “I fear he has unintentionally and negatively affected public trust in both the Justice Department and the FBI.”
The Federal Bureau of Investigation declined to comment for this story. Comey’s critics say the imposing, six-foot, eight-inch FBI chief made his key mistake in July, when he held a news conference to discuss his recommendation that Clinton and her aides not be prosecuted, instead of quietly passing on his advice to the attorney general. Once he did that, Comey felt compelled to endure hours of contentious questioning before Congress and then to acquiesce to lawmaker demands that he release summaries of FBI interviews with Clinton and her aides.
That cascade of actions -- including his public declaration that the Clinton investigation was complete -- boxed in Comey last week, when agents informed him that potentially new evidence was found on a laptop used by close Clinton aide Huma Abedin. He decided to inform Congress, even though he said he didn’t know if the computer held any significant information.
It created “exactly the kind of fill-in-the-blank innuendo that department policies are to avoid,” said Lee Rubin, a former federal prosecutor. “He’s inserted the FBI into areas that traditionally, since Hoover, the bureau has tried to avoid inserting” itself into, he added, referring to infamous former FBI chief J. Edgar Hoover.
Comey’s letter generated such fury that he sent a follow-up memo to FBI employees explaining the move.
“I don’t want to create a misleading impression,” Comey wrote. “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, but I wanted you to hear directly from me about it.”
Obama and congressional leaders knew what they were getting when they picked Comey for the director’s job in 2013. He had cut his teeth as deputy attorney general under President George W. Bush, where his role in opposing a classified warrantless eavesdropping program whose legality the Justice Department questioned became legendary.
In 2004, Attorney General John Ashcroft was hospitalized in intensive care. Knowing that Comey, who was acting attorney general, opposed the surveillance program, White House Counsel Alberto Gonzales and Chief of Staff Andy Card went to get Ashcroft to sign off on the plan. Comey, catching word of their effort, arrived first at Ashcroft’s bedside, he later testified to Congress, and FBI agents on site were ordered “not to allow me to be removed from the room under any circumstance.”
“I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Comey testified.
Ashcroft sat up in bed long enough to reject the proposal from the White House aides and remind them that Comey was in charge. Comey and other top aides weighed resigning en masse if the White House pressed ahead. In the end, the surveillance plan went forward without Justice Department approval, but Comey’s independence won him supporters on both sides of the political aisle.
He “showed courage and independence” as deputy attorney general and “I want him to continue to show the same traits of character if he’s confirmed as director,” Democratic Senator Patrick Leahy, then chairman of the Judiciary Committee, said in 2013.
And so he has.
Earlier this year, Comey tried to force Apple Inc. to hack into an iPhone used by a dead terrorist, saying that was law enforcement’s only option. The move was denounced in Silicon Valley and by privacy advocates, and the bureau later dropped the case after it bought a tool that helped it get access to the phone.
Throughout the controversy over the investigation into Clinton’s e-mails, Comey has defended the bureau’s integrity as he sees it. When Republicans berated him at a House hearing in September for recommending against prosecution of the Democratic candidate and her aides, Comey responded forcefully.
“‘You can call us wrong but don’t call us weasels,” Comey said. “We are not weasels. We are honest people and we did this in that way. Whether your disagree or agree with the result, this was done the way you want it to be done.”
In the wake of Comey’s letter on the Clinton case, the FBI came under criticism again this week when it unexpectedly released 129 pages of documents related to an investigation closed without charges in 2005 into President Bill Clinton’s pardon of Marc Rich, who had been married to a wealthy Democratic donor. The release was just standard procedure in response to a Freedom of Information Act request, the FBI said, but the timing added to the fury over Comey and leadership at the bureau.
“I do not have confidence in him any longer,” Schumer told Bloomberg this week.
Even President Barack Obama, who appointed Comey, appeared to question his judgment during an interview published Wednesday.
"I do think that there is a norm, that when there are investigations, we don’t operate on innuendo, we don’t operate on incomplete information, we don’t operate on leaks," Obama told NowThis News.
Firing an FBI director is politically risky, no matter the circumstances, so that isn’t likely now. William Sessions stands as the only FBI chief dismissed by a president, when Bill Clinton fired him in 1993 after he allegedly used government planes for personal reasons. But even that ouster was carefully choreographed to ensure it didn’t appear politically motivated.
There’s no reason for Comey to resign, and he won’t be forced out regardless of who wins the election, but a mess has been created that will have to be resolved after the election, said former federal prosecutor Joseph diGenova. He said Comey had no choice but to send the letter to lawmakers because word of the newly found e-mails would have leaked.
“The toxicity that exists now is not inside the bureau,” diGenova said. “It’s between the bureau and the Department of Justice. After the election, it is going to be awful.”