What Is the Hatch Act? Who Is Comey? And Other Questions in Clinton Email Case


A Republican FBI director working in a Democratic administration breaks with Department of Justice policy and tells Congress, 11 days before a presidential election, that his agency is resuming work on a probe related to one of the candidates.

Wait, what?

That is where American politics now finds itself, debating Justice Department policies and civic protocols in the campaign’s final stretch.

It’s all related to FBI Director James Comey’s surprise Friday announcement, which has drawn criticism for its potential impact on Hillary Clinton’s election prospects.

Here are the answers to some of the key questions surrounding the matter.

Who does James Comey work for?

In short, the president. Comey was appointed by President Obama — and approved by the Senate — three years ago. His term is limited to 10 years, but he can be fired at any point by Obama, or whoever succeeds him. His direct boss is Attorney General Loretta Lynch.

But the FBI director traditionally enjoys a measure of independence that forms a bedrock of American criminal justice: that investigative decisions are not influenced by politics.

(Press Secretary Josh Earnest said the White House will be “scrupulous” in ‘avoiding even the appearance of interference” in the FBI review of newly-found Hillary Clinton emails. Courtesy of ABC News and YouTube)

When Obama nominated Comey, he praised the director’s “fierce independence and deep integrity.” Nothing appeared to have changed Monday, when White House spokesman Josh Earnest said the president saw the Comey as “a man of principle and a man of good character.” Obama did not believe Comey’s decision was politically motivated, Earnest said.

Comey has differed with Obama in the past.

Last year, Comey said he saw a link between public unrest aimed at law enforcement and a jump in violence in some cities — the so-called “Ferguson effect” — a notion that Obama has downplayed. He also said he was concerned about “certain gaps” in the screening process for Syrian refugees at a time when Obama was insisting that the vetting was comprehensive.

Comey has also had differences with previous bosses, the most noteworthy example coming in 2004, when, as a deputy attorney general, he blocked aides to President George W. Bush from persuading Attorney General John Ashcroft to extend a warrantless eavesdropping program.

What is the Hatch Act?

The main criticism leveled against Comey is that he violated the Hatch Act, a rule designed to keep government officials from using their authority to influence elections.

Elected officials, including the president and vice-president and members of Congress, can campaign for candidates. But they are not allowed to pressure government employees — including FBI agents — from trying to shape an election’s outcome. Government employees, in turn, are restricted in their involvement in politics.

James B. Comey, FBI Director
James B. Comey, FBI Director

There is also a standing policy that the FBI refrain from discussing pending investigations with the public or Congress — particularly when it could impact a coming election.

Comey acknowledged that policy in an email to FBI employees. But he said he felt an obligation to send the letter “given that I testified repeatedly in recent months that our investigation was completed.” If he hadn’t done it, it would have been “misleading to the American people,” he added.

Senate Democratic leader Harry Reid accused Comey of violating the Hatch Act.

So did Richard Painter, a former White House ethics lawyer under Bush — and a Republican who supports Clinton. He filed a complaint against Comey with the Office of Special Counsel and called Comey’s Friday announcement an “abuse of power.”

Painter told MSNBC Monday that Comey had allowed Clinton’s critics in Congress to “play” the FBI.

“I find this entire episode to be an embarrassment for our country,” Painter said.

Proving that Comey violated the Hatch Act will be difficult. There is no public evidence that Comey took any direct campaign-related actions, or demonstrated personal intent to impact the election in his official capacity, a finding that would be needed to support an allegation of a Hatch Act violation.

Typically, violations involve blatant political activities, such as a federal worker campaigning for a candidate on government time.

The Hatch Act is not a criminal statute, so violators are not punished with jail time. Instead, they may be recommended for professional discipline based on a review by the Office of Special Counsel.

Why is Anthony Weiner involved?

The emails that Comey said the FBI needed to review were found on a laptop used by top Clinton aide Huma Abedin. That laptop was being examined because it is owned by Abedin’s estranged husband, Anthony Weiner, a former Congressman embroiled in a sexting scandal.

(A look at Anthony Weiner, Huma Abedin and Hillary Clinton: It’s complicated
The FBI has a warrant to search through emails found on a laptop belonging to Anthony Weiner, estranged husband of Huma Abedin, who is Hillary Clinton’s longest-serving aide. NBC’s Kristen Welker reports for TODAY on the complex personal and political relationship among the three. Courtesy of TODAY and YouTube)

Weiner allegedly used the computer to send inappropriate text messages and pictures to an underage girl, federal officials told NBC News.

The Weiner investigation was unrelated to the Clinton email investigation, which has led some Comey critics to question whether the FBI had the right to flag the Clinton emails on Weiner’s laptop. The agency has since obtained a search warrant for thousands of emails between Abedin and Clinton.

There is no indication that any of those emails point to any wrongdoing.

Comey admitted as much in his letter to Congress, saying the emails “appear to be pertinent” to the Clinton probe, adding that the agency “cannot yet assess whether or not this material may be significant.”

What’s next?

FBI agents are using a program to sift through the thousands of emails on Weiner’s laptop to find all of those to and from Abedin during the time Clinton was secretary of state. From there, the agents will compare the emails to those that have already been investigated to determine if any classified information was sent from Clinton’s private email server.

(Election impact of early voters and the ‘October surprise’ of Clinton emails
Political analyst Nicolle Wallace tells TODAY it’s unknown how greatly the latest developments about Hillary Clinton’s emails will affect “disillusioned” voters. Courtesy of TODAY and YouTube)

The sifting will likely be completed this week, officials told NBC News.

But it’s unclear if there will be a conclusion by Election Day on Nov. 8.

Equally unclear is what kind of impact the case will have. Recent polling indicates that voters on either side don’t seem swayed by the email case.

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