WASHINGTON – Senior Justice Department officials warned the FBI that Director James Comey’s decision to notify Congress about renewing the investigation into Hillary Clinton’s private email server was not consistent with long-standing practices of the department, according to officials familiar with the discussions.
FBI officials who work closely with Comey on Thursday contacted attorneys at the Justice Department. Their message: Comey intended to inform lawmakers of newly discovered emails potentially connected to the Clinton email investigation.
Justice officials reminded the FBI of the department’s position “that we don’t comment on an ongoing investigation. And we don’t take steps that will be viewed as influencing an election,” said one Justice Department official who spoke on the condition of anonymity to describe the high-level conversations.
“Director Comey understood our position. He heard it from Justice leadership,” the official said. “It was conveyed to the FBI, and Comey made an independent decision to alert the Hill. He is operating independently of the Justice Department. And he knows it.”
Comey’s decision less than two weeks before the presidential election has stunned former and current law enforcement officials and rocked the Clinton campaign, which appeared to be coasting to victory. The bureau director said in a memo to FBI employees he felt obligated to update lawmakers after testifying under oath that the investigation into Clinton’s private email server was complete. And he feared that word of the newly discovered emails – found in the course of a separate investigation into former U.S. congressman Anthony Weiner, D-New York – would leak to the media and suggest a coverup, according to officials familiar with his thinking.
FBI officials said Comey and those advising him were well aware of Justice Department policy, but considered it “guidance,” rather than an ironclad rule, on how to handle such sensitive information so close to an election.
During a “vigorous discussion” at the FBI among about 10 officials, lawyers and staffers, different options were discussed, said one official with knowledge of the discussion. In the end, Comey felt that the Justice Department guidance about elections did not pertain to this “extraordinary situation,” the official said.
But the day after Comey’s surprise announcement, anger at the FBI director from Democrats had only intensified.
Campaign chairman and longtime Clinton family confidant John Podesta said on a call with reporters that Comey’s announcement was “long on innuendo and short on facts,” allowing Republicans to “distort and exaggerate” its message.
“There’s no evidence of wrongdoing, no charge of wrongdoing, no indication that this is even about Hillary,” Podesta said.
Comey’s decision to ignore the advice of Justice leadership is “stunning,” said Matt Miller, who served as Justice Department spokesman under then-Attorney General Eric Holder Jr. “Jim Comey forgets that he works for the attorney general.”
“I think he has a lot of regard for his own integrity. And he lets that regard cross lines into self-righteousness,” Miller said. “He has come to believe that his own ethics are so superior to anyone else’s that his judgment can replace existing rules and regulations. That is a dangerous belief for an FBI director to have.”
With his letter to lawmakers Friday, Comey managed to unite traditionally polarized partisans in Congress who asked the FBI director to immediately release more information and explain his actions.
On Saturday, four Democratic senators called on Attorney General Loretta Lynch and Comey to further explain the letter Comey sent to congressional leaders. Sens. Thomas Carper (Delaware), Patrick Leahy (Vermont), Dianne Feinstein (California) and Benjamin Cardin (Maryland) asked that Lynch and Comey by Monday provide more details of the investigative steps being taken by the FBI, the number of emails involved and what is being done to determine how many of the emails are the same as ones already reviewed by the FBI.
“Just 10 days before a presidential election, the American people deserve more disclosure without delay regarding the FBI’s most recent announcement,” the senators wrote. “Anything less would be irresponsible and a disservice to the American people.”
Republican lawmakers are likewise interested in greater transparency from the FBI director.
Sen. Ron Johnson, R-Wisconsin, chairman of the Senate Homeland Security and Governmental Affairs Committee, wrote Comey Friday evening with a similar request.
“In line with your commitment to be transparent with Congress and the public, I respectfully request that the FBI provide as much information as possible about these new developments without harming the integrity of its ongoing investigation,” Johnson wrote in the letter.
The FBI director is considered a quasi-independent law enforcement official, though the role still falls under the attorney general. The division of duty between the FBI and attorneys at the Justice Department is usually clear. FBI agents investigate cases and will offer recommendations on whether to bring charges. Justice officials ultimately make that call.
But in the case of the Clinton email server investigation, that norm was upended in June after Lynch and former president Bill Clinton met on Lynch’s plane in Phoenix, just as the inquiry was in its final stages. Lynch described the meeting as “primarily social,” but she soon pledged that she would accept the recommendations of the FBI on the Clinton email probe.
That led to Comey’s unusual news conference in July, when he announced he had finished an investigation into whether Clinton had mishandled classified information during her tenure as secretary of state. He recommended she not be charged.
DOJ officials said that Lynch and Comey did not have a direct conversation about Comey’s decision to inform lawmakers of newly discovered emails.
The emails, which number in the thousands, were found on a computer used by Weiner, now under investigation after allegedly sending sexually explicit messages to a minor, and top Clinton aide Huma Abedin, who is Weiner’s wife. The two recently separated.
The emails may duplicate some of those already reviewed, and officials still are not sure of their significance. While the FBI had legal authority to search Weiner’s laptop for evidence related to his case of sexting a minor, it could not seize emails related to the Clinton server case. That would require a separate search warrant or the consent of the people whose emails were gathered.
Comey said that once FBI officials decided to review the newly discovered batch of emails found on the Weiner computer, and examine its significance to the Clinton investigation, the law enforcement activity would soon become public.
“How would that look?” an official asked. “And how do you then explain it? What impact would that have had to hold onto this information for a couple of weeks?”
Michael Vatis, a former senior Justice Department official who is now a partner at Steptoe & Johnson, said Comey was probably trying to be transparent. But “transparency is not the foremost value in investigations. Fairness is,” he said.
“His statement has, quite predictably, been blown out of proportion and twisted into a signifier of some momentous discovery, when in fact, the new emails may turn out to reveal nothing new at all,” he said. “That’s not fair to Clinton.”
A 2012 Justice Department memo sent by Holder during the last presidential race said employees “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.”
The memo advised that if an employee was “faced with a question regarding the timing of charges or overt investigative steps near the time of a primary or general election,” the employee should contact the department’s public integrity section “for further guidance.”
An expert on legal ethics, Stephen Gillers of New York University School of Law said he was disturbed by Comey’s conduct during this election season.
“Comey’s July press conference was wrong, and now he has doubled down,” Gillers said. “The FBI’s job is to gather information for and make a recommendation to DOJ lawyers, not to hold press conferences and characterize the evidence. Tolerating that conduct from an FBI director sets a terrible precedent.”
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Adam Entous, Jenna Johnson and Matt Zapotosky contributed to this report.