Comey’s conscience

Jack Goldsmith and Ben Wittes have a great piece unpacking Director Comey’s decision to advise Congress that he has discovered more emails that —though not from nor to Hillary Clinton—may possibly be relevant to an investigation of Clinton’s handling of classified email. Here’s the bit of the argument I just don’t get:

Having said all that, it’s not clear what realistic alternative Comey might have had. Imagine for a moment that the Bureau had sat on this until after the election and it then emerged that (a) the FBI had additional emails, (b) that Comey knew it had additional emails, (c ) that having testified that the investigation was completed he (d) he did not authorize additional review or he did so but did not notify Congress that his earlier statements had proven incorrect. It would be a major major scandal, particularly if one or more of those emails fundamentally undermined his earlier investigative judgments.

But why isn’t just sucking it up a “realistic alternative”?

In fact, given what he knew, saying nothing would not “undermine his earlier investigative judgments.” When he said what he said it was true. Nothing he learned afterwards would give him any reason to question that correct “investigative judgment.” Nothing in his promise to Congress requires him to report every possible lead, as soon as it might appear. He has authorized “additional review”; so far, that review has revealed nothing.

No doubt, it may later seem like he was trying to hide something. That would certainly put him — and the FBI—in a difficult position. But possible appearances notwithstanding, in fact, he isn’t hiding anything. What he would have been doing — if he had just stayed silent—was to behave as an investigator should, less than 2 weeks before a national election.

Appearance is important in a democracy. No doubt. And the appearance of a coverup is certainly damaging.

But truth should matter too. And avoiding the discomfort of a baseless “scandal” allegation is not the most important value at stake. We ask soldiers to take bullets. We can ask FBI directors to suffer the potential of some difficult questions.

law professor, activist.

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