New questions were raised Thursday about whether FBI Director James Comey will be able to keep his job after the Justice Department’s internal watchdog opened an investigation into his handling of Hillary Clinton’s use of a private e-mail server.
The investigation by the department’s inspector general will examine whether the Federal Bureau of Investigation failed to follow appropriate procedures and improperly released information about the Clinton probe — renewing scrutiny of one of the most contested developments of the 2016 election campaign.
Public pronouncements by Comey at different points last year drew denunciations from Donald Trump, who will become president next week, and from Hillary Clinton, who has blamed her defeat in part on Comey’s statements.
“What Comey did, commenting on an investigation, was totally improper,” said Nick Akerman, a partner at the law firm Dorsey & Whitney LLP and a former federal prosecutor. “There is no need to have an inspector general investigation to justify the president firing him.”
Justice Department Inspector General Michael Horowitz said in a statement Thursday that his investigation will examine actions leading up to Comey’s decision to announce findings of his probe on July 5, when he said that Clinton and her top aides were “extremely careless in their handling of very sensitive, highly classified information” but that no criminal prosecution should be pursued.
He said it also includes a review of actions surrounding Comey’s later announcements that he was reopening and then again closing the probe, both made days before the Nov. 8 election. Democrats say those moves damaged Clinton’s candidacy at a crucial moment and helped hand the presidency to Trump.
Comey is in his fourth year of a 10-year term and can be removed only if he resigns or is fired by the president. There are no signs he intends to resign and only one FBI chief in the bureau’s history — William Sessions in 1993 — has ever been fired.
In a statement Thursday, Comey said he’s “grateful to the Department of Justice’s IG for taking on this review,” adding that “everyone will benefit from thoughtful evaluation and transparency regarding this matter.”
Earlier in the week, the 56-year-old FBI chief told the Senate Intelligence Committee that “I hope I’ve demonstrated by now I’m tone-deaf when it comes to politics, and that’s the way it should be.”
Long before the Clinton probe, Comey had earned a reputation for independent action. As acting attorney general under President George W. Bush, he led efforts to oppose a classified warrantless eavesdropping program whose legality the Justice Department questioned, putting him in direct conflict with the White House.
Earlier last year, Comey tried to force Apple Inc. to hack into an iPhone used by a dead terrorist, saying that was law enforcement’s only option. The move was denounced in Silicon Valley and by privacy advocates, and the bureau later dropped the case after it bought a tool that helped it get access to the phone.
But that criticism paled in comparison to what Comey endured after offending Republicans and Democrats in turn during last year’s highly polarized presidential campaign. His initial conclusion that Clinton and her aides shouldn’t face charges drew condemnation from Trump and other Republicans, who said the probe had been politicized.
“FBI director said Crooked Hillary compromised our national security. No charges. Wow! #RiggedSystem,” Trump said in a tweet at the time.
But Comey’s surprise October announcement that he would reopen the investigation based on new and potentially relevant evidence drew praise from Trump and infuriated Democrats. It even drew a rebuke from President Barack Obama, who told NowThis News that “I do think that there is a norm, that when there are investigations, we don’t operate on innuendo, we don’t operate on incomplete information, we don’t operate on leaks.”
Trump saw it differently, saying “I have great respect that the FBI and Department of Justice have the courage to right the horrible mistake that they made. This was a grave miscarriage of justice that the American people fully understood.”
The president-elect’s transition team didn’t respond to requests for comment on the inspector general’s latest announcement.
‘Glaring and Egregious’
Former Clinton spokesman Brian Fallon called the new investigation “entirely appropriate and very necessary but also not surprising.”
“The deviations from the protocols at the FBI and the Justice department were so glaring and egregious,” Fallon said in an interview on MSNBC. Were it not for Comey’s letter just before the election, Clinton would be president, Fallon said.
Horowitz said there will also be an examination of whether FBI Deputy Director Andrew McCabe should have recused himself from participating in the Clinton e-mail investigation because of his wife’s Democratic connections. And investigators also will look at whether other non-public information was improperly released during the campaign.
The inspector general’s decision came following requests “from numerous chairmen and ranking members of congressional oversight committees, various organizations, and members of the public,” according to the statement.
It wasn’t immediately clear who would be in charge of responding to recommendations made by the inspector general, which will come after Trump takes office. His nominee to head the Justice Department, Alabama Republican Senator Jeff Sessions, appears likely to be confirmed by the Senate as the next attorney general.
However, Sessions said during his confirmation this week that he would recuse himself from any matters related to any Clinton investigation because of disparaging comments he made about Clinton during the campaign.
Nevertheless, the internal investigation could ultimately help restore confidence in the Justice Department and FBI, both of which had their reputations heavily damaged by the way the Clinton investigation was handled. Some critics, including several lawmakers, have said Comey should have resigned over how the probe and the public announcements were handled.
Attorney General Loretta Lynch and other senior department officials told Comey at the time not to send his letter to lawmakers on Oct. 28 announcing that the Clinton investigation was being reopened. They argued that doing so violated long-standing policy to not undertake anything significant with a major investigation so close to an election if, by doing so, it could affect the results.
Comey proceeded anyway — writing to lawmakers about a fresh trove of e-mails possibly tied to Clinton that he said needed to be reviewed. But the handling of the probe had already been assailed by that point, after Lynch met privately with Bill Clinton on an airport tarmac in late June. Lynch said she and the former president discussed only personal issues, such as their grandchildren, but the private meeting quickly became a pivotal, controversial event in the investigation’s timeline.
The Justice Department watchdog investigation will include a review of allegations that the assistant attorney general for legislative affairs improperly disclosed non-public information to the Clinton campaign, and whether he should have been recused from participating in certain matters.
It also will review whether the FBI’s decision to release certain Freedom of Information Act documents on Oct. 30 and Nov. 1 via a Twitter account was influenced by improper considerations. Those postings, which touched on Bill Clinton’s controversial 2001 pardoning of a wealthy donor, and documents related to an FBI file on Trump’s late father, fueled further confusion and criticism about management at the bureau.