Uproar over whether FBI chief broke law
by raising new Clinton emails
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[November 01, 2016]
By Mica Rosenberg
NEW YORK (Reuters) - 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."
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"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.
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![](../images/110116pics/news_z43.jpg)
FBI Director James Comey is sworn in before testifying before a
House Judiciary Committee hearing on "Oversight of the Federal
Bureau of Investigation" on Capitol Hill in Washington, U.S.,
September 28, 2016. REUTERS/Joshua Roberts
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INCREASED DISCIPLINE
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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(Reporting by Mica Rosenberg in New York; Additional reporting by
Joel Schectman, Julia Harte and Alana Wise in Washington; Editing by
Noeleen Walder and Howard Goller)
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