Hatch Act case against FBI chief elusive

What a difference a few months makes!

In July, after FBI Director James Comey called Hillary Clinton and her top aides “extremely careless” in handling classified information using a private email server but said no charges would be filed, Democrats were full of praise and Republicans full of anger.

Soon-to-be-vice-presidential-nominee Tim Kaine called him “a wonderful and tough public servant.” House Minority Leader Nancy Pelosi said he was a “great man” and that Americans were privileged to have him as their FBI director. And Nevada’s own Sen. Harry Reid said no one could question Comey’s integrity and competence.

But now, after Comey wrote a letter to Congress to inform several committee chairs of the discovery of an additional trove of emails written by top Clinton aide Huma Abedin that may be relevant to the investigation, it’s the opposite.

Reid wrote a letter to Comey on Oct. 30, claiming the director was deliberately not releasing information “about close ties and coordination between Donald Trump, his top advisers and the Russian government,” but was only too quick to release the latest Clinton email news.

“The clear double-standard established by your actions strongly suggests that your highly selective approach to publicizing information, along with your timing, was intended for the success or failure of a partisan candidate or political group,” Reid wrote. “I led the fight to get you confirmed because I believed you to be a principled public servant. With the deepest regret, I now see that I was wrong.”

Reid also suggested Comey had violated the Hatch Act, a Depression-era law that prohibits federal officials from using government time or resources to influence an election.

So, is Reid right? Or is his charge a trademark political maneuver meant to move the spotlight from Clinton to Comey in the closing days of a hard-fought election?

Two former federal prosecutors here in Las Vegas both said they were skeptical of accusations Comey did something wrong, primarily because he was acting within the scope of his job when he wrote the letter last week disclosing the additional emails had been found.

“Zero, zero, zero,” one said when asked about the potential of a Hatch Act violation. “It’s absolutely ridiculous.”

Comey had promised to inform Congress if new information surfaced, another former federal prosecutor said, and this letter fulfilled that promise. “I think he’s between a rock and a hard place, but rock and a hard place is not a crime,” he said.

Loyola University law professor Laurie Levenson, also a former federal prosecutor, agreed. “I think it’s a real long shot,” she said. You’d have to prove that Comey intended to influence the election by sending his letter, even though Comey himself said his purpose was to keep Congress informed of the status of the investigation, Levenson said.

However, Washington University law school professor Kathleen Clark suggested that there might be a Hatch Act case, although it has nothing to do with Russian hackers. She pointed to an email Comey sent to FBI employees last week in which he said, “I also think it would be misleading to the American people were we not to supplement the record.” That phrase, Clark said, suggests that at least one of Comey’s purposes may have been to influence voters, and thus the election.

“James Comey engaged in an overshare,” Clark said.

Sources interviewed for this column said Comey’s overshare actually began with his July news conference. He should have simply said no charges would be sought, rather than criticizing Clinton, they said.

“He put himself in the political hot seat,” Levenson said. “Just do your job.”

Perhaps even Comey — disparately praised by Democrats and Republicans depending on the month — realizes that now.

Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.