This Spade Really IS Being Called a Spade. Surprisingly.

THE F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect. Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.

It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.

But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

That is why the F.B.I. presumably would keep those aspects of an investigation confidential until after the election. The usual penalty for a violation is termination of federal employment.

And that is why, on Saturday, I filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics. I have spent much of my career working on government ethics and lawyers’ ethics, including two and a half years as the chief White House ethics lawyer for President George W. Bush, and I never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.

On Clinton Emails, Did the F.B.I. Director Abuse His Power?, Richard W. Painter, New York Times, today


Actually, the idea that materials gathered in a governmental investigation resolved without prosecution should, in the name of transparency, be made known in summary form when relevant for the guidance of voters is quite frightening.

Comey’s mistaken quest for transparency, Donald B. Ayer, Washington Post, today

When I chose the title for this post on Friday, I didn’t expect that people who actually matter—a lot of them, as there are by now—would outright say this.  I’m very happy to have been proved wrong.


UPDATE:  Cool.  (PDF document.)  Also, a cool comment on it at the end of this article.  There’s an incredibly strong consensus that Comey abused his office.  Didn’t expect that.  But it’s happened.

Added 10/30 at 7:13 p.m.

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