Outgoing Senate Minority Leader Harry Reid sent a letter to FBI Director James Comey accusing him of violating the Hatch Act, after the Bureau reopened its probe of Democratic nominee Hillary Clinton’s use of a private email server during her tenure as secretary of state.
George Washington University Law School professor Jonathan Turley, whose varied expertise includes anti-corruption statutes, says Comey has done nothing of the sort.
“The Hatch Act was designed to prevent federal employees from using their powers in office to influence federal elections,” Turley told The Daily Caller News Foundation. “This was a response to a scandal involving that type of electioneering.” He also notes that Hatch Act investigations are of an administrative nature, not criminal. “It is a statute that results in the investigation of employees and allows for potential discipline,” he said. “It is not, generally, a criminal statute.”
Though he has been critical of other aspects of the Clinton investigation, Turley told TheDCNF that the director performed as well as he could have under difficult circumstances.
Reid’s Sunday letter to Comey reads:
Your actions in recent months have demonstrated a disturbing double standard for the treatment of sensitive information, with what appears to be a clear intent to aid one political party over another. I am writing to inform you that my office has determined that these actions may violate the Hatch Act, which bars FBI officials from using their official authority to influence an election. Through your partisan actions, you may have broken the law.
Comey’s actions cannot be construed as the sort of “electioneering” activities which are verboten by the Act, in Turely’s view. “I don’t see any plausible basis for a Hatch Act investigation, let alone discipline under the Hatch Act,” he said. “I think the suggestion that what Director Comey did was a violation is impossible to square with the language and purpose of the Act.” (RELATED: ‘There’s So Much Money On The Table:’ Hillary Aide Reacts To SCOTUS Ruling)
As the law professor notes on his blog, 5 U.S.C. § 7323(a)(1) prohibits a government employee from “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.” An investigation stemming from this language requires a demonstration of intent. He writes: “Intent is key under the Hatch investigations. You can disagree with the timing of Comey’s disclosure, but that is not a matter for the Hatch Act or even an ethical charge in my view.”
Beyond the Hatch Act question, Turley contends that Comey’s actions would have elicited criticism regardless of the final choice he made.
“I think that Director Comey was between the horns of a dilemma,” he explained. “He was going to be accused either of a violation of omission or commission. If he had withheld this information and it proved to be substantial, people would have accused him of favoring the Clinton campaign. If he had released more information he would have been accused of clearly favoring the Trump campaign.”
Turley further explained that the best way to thread this needle would be by making a minimalist disclosure to Congress, so as to satisfy his promise to keep Congress apprised of the investigation without compromising his integrity and neutrality.
“I’m not too sure there was a good option for Comey in all of this,” he added.
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