I don't know. But considering Comey's experience in law

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1) What was Comey’s original non-prosecution decision this summer?

On July 5, Comey held a press conference concerning “the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.” Comey stated that “[a]fter a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision.”

Comey also announced the FBI’s prosecution recommendation to the Department of Justice. He acknowledged that Hillary Clinton and her State Department colleagues had been “extremely careless in their handling of very sensitive, highly classified information.” But he concluded that “[a]lthough there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

He further explained:

Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent.

Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.

All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

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14) Does the letter mean the FBI has found something explosive and seriously incriminating about Clinton?

No. A lot of commentators, particularly on the conservative side, are assuming that these emails must contain something really big for Comey to have acted as he did. We think that misreads the situation.


The more likely scenario, in our view, is that Comey’s actions simply reflect the volume of new material and the consequent uncertainty as to what it might mean. The New York Times reports, citing a senior law enforcement official, that we are dealing with tens of thousands of emails.

That means the Bureau will have to figure out how many are duplicative of emails they’ve already looked at, how many are potentially relevant to an investigation limited to the mishandling of classified information, and whether any at all contain classified information. And as noted above, email investigations are extremely complex.

15) Did Comey breach law enforcement norms by sending yesterday’s letter?

Yes.

For starters, the Justice Department is very cautious about taking major actions in politically loaded cases in the immediate run-up to an election and has policies expressly limiting this kind of activity. This caution exists because our political culture doesn’t want the FBI to influence elections by opening or conducting investigations in a fashion prejudicial to one of the candidates.

A 2012 memorandum from Attorney General Eric Holder to all Justice Department employees articulating this policy says that “If you are faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election, please contact the Public Integrity Section of the Criminal Division for further guidance.”

While the Public Integrity Section declined to comment on whether Comey followed these guidelines, common sense suggests that Comey, by consulting with Deputy Attorney General Sally Yates and the attorney general herself, did something more than consult with Public Integrity. And it’s not clear that the steps he has taken (authorizing a review of emails) count as “overt investigative steps” anyway, though the letter to Congress might.

That said, this is a case in point of why this policy exists.

Here Comey opened a new set of questions about one of the major party candidates with 11 days to go in the campaign—questions he has all but said he can’t answer yet. Doing so offers an open-ended opportunity for Clinton’s opponents to make inferences about her conduct.

And Trump has done exactly that, saying yesterday “they are reopening the case into her criminal and illegal conduct that threatens the security of the United States of America. Hillary Clinton’s corruption is on a scale that we have never seen before.”

More generally, as discussed above, Comey’s willingness to talk about his investigative findings is itself atypical—and generally frowned upon.

Notably, the attorney general and Yates appear to have cautioned against what Comey did. Prior to his announcement, the attorney general allegedly “expressed her preference” that Comey follow the Department of Justice’s practice, described above, and not comment.

Despite her advice, at least one administration official has said that Comey felt “obliged” to inform Congress because he had promised to do so if there were developments in the case.

In a blistering Washington Post op-ed, former DOJ spokesman Matthew Miller goes after Comey for the sequence of public statements and disclosures that culminated in yesterday’s letter:


Comey’s original sin came in July, when he held a high-profile news conference to announce his recommendation that the Justice Department bring no charges against Hillary Clinton. In doing so, Comey violated Justice rules about discussing ongoing cases and, as I argued at the time, made assertions that exceeded FBI authority, recklessly speculated about matters for which there was no evidence, and upended the consultative process that should exist between investigators and prosecutors.

Comey argued that his news conference was necessary in a case of intense public interest, but as his actions in the months since have shown, the precedent he set has led only to increasingly problematic outcomes.

First, because Comey had already publicly discussed the investigation, he felt free to answer detailed questions about it before a congressional panel two days later. Comey’s description of not just the FBI’s legal reasoning but also the underlying facts of the case only provided more ammunition to critics on both sides. Notably, when Comey’s titular boss, Attorney General Loretta E. Lynch, appeared before a congressional panel later that month, she declined to follow his lead, citing Justice practices prohibiting her from doing so.

Then Comey decided to turn over the FBI’s investigative file to Congress, refusing to even consult with the State Department over what information should be redacted. When that wasn’t enough to satisfy critics, he publicly released the information in dribs and drabs that fueled repeated news cycles in the midst of the campaign.

With each step, Comey moved further away from department guidelines and precedents, culminating in Friday’s letter to Congress. This letter not only violated Justice rules on commenting on ongoing investigations but also flew in the face of years of precedent about how to handle sensitive cases as Election Day nears.

Miller is being unduly harsh here, but he’s not wrong that Comey is on a slippery slope of sorts, in which each disclosure necessitates the next disclosure and draws the FBI further and further away from Justice Department norms designed to keep law enforcement out of election campaigns.

Having said all that, it’s not clear what realistic alternative Comey might have had. Imagine for a moment that the Bureau had sat on this until after the election and it then emerged that (a) the FBI had additional emails, (b) that Comey knew it had additional emails, (c) that having testified that the investigation was completed he (d) he did not authorize additional review or he did so but did not notify Congress that his earlier statements had proven incorrect. It would be a major major scandal, particularly if one or more of those emails fundamentally undermined his earlier investigative judgments.