Will Next Tuesday Come Down To Whose Emails Shenanigans Were Worse? What Would Thomas Jefferson And James Madison Say?

First thing Monday morning the Democratic Coalition Against Trump announced they had filed a complaint against Jason Chaffetz (R-UT), the hyper-partisan head of the House Oversight Committee, with the Office of Congressional Ethics for his role in releasing information provided to him by FBI Director Comey. Their press released stated that "Chaffetz, in an ill-planned partisan attempt, released information that compromised the integrity of the FBI, when he irresponsibly tweeted out that the case investigating Secretary Clinton’s emails had been reopened, when in fact it had not been. Members of Congress are elected to make our country a safer, better place- not to use their power to work with leaders such as Comey in a partisan fashion. I hope that both are held accountable for their actions." Here's a copy of the complaint they sent to the Department of Justice. They also released a joint statement with former Bush White House counsel Richard Painter condemning Comey’s actions and asking for a swift investigation into the matter.

James Comey used his power as head of the FBI to attempt to influence a Presidential election. This is drastic violation of the Hatch Act that extends beyond party lines. When Comey was pressured by members of the United States House of Representatives to send a letter detailing the his investigation into Secretary Clinton’s emails, he should have known that the contents would be made public. The Members who released this letter placed partisan politics above the integrity of the FBI. We hope that investigations into Comey’s actions begin swiftly and are resolved with the same expediency.

“A confidential letter that nobody would release would not be a violation of the Hatch Act. The Members used Comey, and he let himself be used, and for that, his actions should be investigated,” said Richard Painter.

  “The criticisms of Comey's actions are coming from both sides of the aisle,” said Scott Dworkin, senior advisor to the Coalition, “at some point we have to take a step back and realize that that this goes above politics, above the Presidential election- this is about misuse of power by someone charged with the task of keeping our country safe. If we can't trust Comey to stay out of partisan politics, as all federal employees are required to do, how can we expect him to protect us?”

Also Monday morning, Ian Millhiser, writing for Think Progress explained the case for firing Comey. Hours after he inserted himself into the presidential race, I ran a quickie Twitter poll, asking what should be done about him. There wasn't much ambiguity:

"Comey," Millhiser wrote, "violated longstanding Justice Department protocol when he decided to disclose the very few facts that he actually did disclose in his letter to the Republican chairs. And we know that he wrote the letter over the explicit objections of Attorney General Loretta Lynch."

President Obama should fire James Comey. He should do so not because of the political consequences of Comey’s actions--  although those consequences could be quite severe--  but because Comey’s actions show an unacceptable disregard for the safeguards that exist to protect innocents from the awesome power of a federal police force.

The Justice Department, as former Deputy Attorneys General Jamie Gorelick and Larry Thompson explain in the Washington Post, operates “under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.” Yet Comey gave unclear but highly damaging information to a major presidential candidate’s political enemies just eleven days before the 2016 election.

And he did so despite the fact that he has no idea whether there is any evidence that she did something wrong --  and despite the fact that his agents haven’t even begun to search for such evidence. It’s as if Comey implicated Clinton in the John F. Kennedy assassination because Comey heard that she may have once been in Dallas.

Hillary Clinton is many things. She is a former first lady, a former senator, and a former secretary of state. It is more likely than not that she will also be the next president of the United States. But Clinton is also an American, and that means that she enjoys certain rights if the state attempts to bring its police power to bear against her.

The Bill of Rights spills more ink on the rights of people caught up in the criminal justice system than on any other topic. Police (or FBI agents, who are effectively federal police) cannot subject people to “unreasonable searches and seizures.” They cannot obtain a search warrant, except upon “probable cause.” And even then, the scope of the search must be limited and specified in the warrant.

After police clear these hurdles, criminal suspects still enjoy a panoply of other rights. They cannot be twice tried for the same crime by the same sovereign. They must be afforded a fair process. They must be granted a speedy trial, legal representation, and an impartial jury. Excessive bail may not imposed on criminal defendants, nor may “cruel and unusual punishments” be inflicted on the guilty.

The framers of our Constitution, in other words, were well aware of the dangers of an unchecked police force, and they made considerable efforts to rein in law enforcement. One of the most important of these checks is a constitutional system which requires police and prosecutors to clear a rising series of hurdles as they seek to impose more and more state power upon an individual.

...Imagine that you were applying for a job. Imagine now that, after a successful interview and glowing job references, you fully expected to receive a job offer in the coming weeks. Now imagine that, while you were awaiting that offer, the local police chief contacted the company you hoped to work for, and informed them that they were conducting some vague investigation into something you did in the past.

That’s what James Comey did to Hillary Clinton.

The cardinal rule of American criminal law is that no one may be punished--  or, in many cases, even subjected to a significant inconvenience--  without some reason to believe they are somehow engaged in wrongdoing. Comey broke that cardinal rule. And he did so despite the fact that, as far as he or anyone else knows, the FBI has no evidence whatsoever that Clinton engaged in wrongdoing.

...A congressional investigation into former FBI Director J. Edgar Hoover COINTELPRO revealed that the FBI targeted political dissidents with tactics that were “indisputably degrading to a free society.” The FBI “anonymously attack[ed] the political beliefs of targets in order to induce their employers to fire them.” It mailed “letters to the spouses of intelligence targets for the purpose of destroying their marriages.” It falsely labeled “as Government informants members of groups known to be violent, thereby exposing the falsely labelled member to expulsion or physical attack.” And it falsely informed a Chicago gang leader that the Black Panthers have “a hit out for you” in the hopes that the gang leader would “take retaliatory action.”

In one of the FBI’s darkest moments, it “mailed Dr. King a tape recording made from microphones hidden in his hotel rooms which one agent testified was an attempt to destroy Dr. King’s marriage.” This record, moreover, “was accompanied by a note which Dr. King and his advisors interpreted as threatening to release the tape recording unless Dr. King committed suicide.”

There’s no indication that Comey engaged in misconduct approaching what happened under Director Hoover, and there’s no reason to think he had nefarious intent. In a letter to FBI employees, Comey said that he wrote the inflammatory letter to the Republican chairs because he felt “an obligation to do so given that I testified repeatedly in recent months that our investigation was completed” and that he also thought “it would be misleading to the American people were we not to supplement the record.”

But that does not change the fact that Comey violated longstanding policies that exist to protect both the rights of the accused and the integrity of America’s democracy.

An FBI director decides that the rules don’t apply to just this one case, because of the unusual level of public interest. An agent breaks into a home without a warrant because he doesn’t want to wait to catch a particularly nefarious criminal. A beat cop plants evidence on an especially dangerous criminal, because the public is better off with him off the street. All of these things may be done for good purposes, but the rules are there for a reason.

Law enforcement agencies become very dangerous if they think they can make on-the-fly decisions about what crosses the line. The rules exist to keep good faith actors from becoming J. Edgar Hoover.

The irony of Comey’s bluster is that its highly political nature likely insulates him from consequence.

In the still-probable event that Clinton wins the presidential election, she cannot fire Come--  at least until the FBI concludes this latest phase of its examination of her emails--  lest she appear to be engaged in self-dealing.

That leaves President Obama, who no doubt does not want to be accused of protecting his chosen successor. He may also be worried about leaving a key vacancy that the dysfunctional Senate is unlikely to fill before the next president takes office. If that president is Clinton, there are obvious reasons why she should not appoint anyone to replace Comey until after the email investigation is concluded.

The FBI does have a clear contingency plan in place to deal with a long-term vacancy at the top. Deputy Director Andrew McCabe, a career FBI agent with about 20 years of experience, would assume Comey’s duties in his absence.

So, in removing Comey, President Obama can send a clear message that the rule of law depends on law enforcement agencies being bound by rules that apply to all cases. And the agency can continue its business without the awkward spectacle of Clinton choosing Comey’s successor before the agency completes its inquiry into the new emails.

This, admittedly, is not an ideal solution. McCabe’s wife ran as a Democrat for a seat in the Virginia state senate. Republicans will no doubt use that as an excuse to question the new acting director’s impartiality.

But we are in this mess, at last in part, because Comey felt an obligation to ward off attacks from Republican lawmakers by providing them with information he had no business making public before an election. It’s time to stop basing crucial decisions about what rules apply to law enforcement on an impossible desire to placate GOP partisans, and to start restoring confidence in the FBI.

And, speaking of e-mails, the Kurt Eichenwald-penned Newsweek cover story about Trump destroying subpoenaed e-mails is worth reading. "Trump, he wrote, "has a long, troubling history of destroying and hiding important documents in lawsuits, but he thinks Hillary Clinton’s the one who should be going to jail. Over the course of decades, Donald Trump’s companies have systematically destroyed or hidden thousands of emails, digital records and paper documents demanded in official proceedings, often in defiance of court orders. These tactics-- exposed by a Newsweek review of thousands of pages of court filings, judicial orders and affidavits from an array of court cases-- have enraged judges, prosecutors, opposing lawyers and the many ordinary citizens entangled in litigation with Trump. In each instance, Trump and entities he controlled also erected numerous hurdles that made lawsuits drag on for years, forcing courtroom opponents to spend huge sums of money in legal fees as they struggled-- sometimes in vain-- to obtain records."

And, of course, this Trump behavior, like all Trump beaver is part of a lifelong pattern of arrested developmental protectionism. "This behavior," wrote Eichenwald, "is of particular import given Trump’s frequent condemnations of Hillary Clinton, his Democratic opponent, for having deleted more than 30,000 emails from a server she used during her time as secretary of state. While Clinton and her lawyers have said all of those emails were personal, Trump has suggested repeatedly on the campaign trail that they were government documents Clinton was trying to hide and that destroying them constituted a crime. The allegation-- which the FBI concluded was not supported by any evidence-- is a crowd-pleaser at Trump rallies, often greeted by supporters chanting, 'Lock her up!'"

Eichenwald isn't just seeking to transmit "a sordid history lesson" with his revelations going back decades. "Rather," he concludes, "it helps explain his behavior since he declared his candidacy. He promised to turn over his tax returns and his health records-- just as he promised to comply with document discovery requirements in so many lawsuits-- then reneged. As a result, he has left a sparse evidentiary trail that can be used to assess his wealth, his qualifications for the presidency or even his fitness. Should voters choose him to be the next U.S. president, he will enter the Oval Office as a mystery, a man who has repeatedly flouted the rules. He has solemnly told the country to trust him while refusing to produce any records to prove whether he speaks the truth or has utter contempt for it."