Friday, October 28, 2016

The Ramifications of FBI Director Comey's Missteps

It is common in white collar cases for investigations to span over many years.  Being essentially document cases, one sees white collar crime investigations lasting the length of a grand jury or sometimes the span of a few grand juries. It is rare that one sees the investigated party receiving a letter at the end saying that we tried to find something in this investigation against you, but we failed. And having a press conference to announce it, is going even further.

Yet, surprisingly that essentially occurred when FBI Director James Comey investigated Secretary of State Hillary Clinton.  As I previously noted,  I gave an "A" to Attorney General Loretta Lynch for her 3 1/2 line statement closing the investigation (see here), a contrast to FBI Director James Comey's statement that insinuated wrongdoing while also saying a prosecution was not warranted here because "we cannot find a case that would support bringing criminal charges on these facts." (see here).  Case closed.

Now enter the current political climate, a climate that has been contentious, exhausting, and embarrassing to our nation. And on the near eve of the final voting we see the FBI Director re-examining his prior decision and as opposed to keeping his investigation secret, as is typically done, he announces to the world that he is re-examining his case.  FBI Director Comey states in a letter updating his prior congressional testimony that the F.B.I. was taking "steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation."  FBI Director Comey is also saying that he "cannot predict how long this would take. . ." (see NYTimes copy of letter here). 

Double jeopardy does not apply here, and an investigation can be re-opened. But why is he telling us this?  And why is he stating this just 11 days before the election? The most likely answer is that he had no choice given his prior decision earlier this year to go against the typical process of keeping investigations secret. When evidence is given to the DOJ and then presented to a grand jury, Federal Rule 6(e) of the Federal Rules of Criminal Procedure insures that secrecy. 

Now just 11 days before Election Day, we are now seeing the ramifications of FBI Director Comey's initial misstep in commenting on an investigation -- how deep those ramifications are won't be known until the final votes are in.  If even then.

Checkout Lanny Davis: Comey’s actions improper, irresponsible and possibly illegal

Also Jamie Gorelick and Larry Thompson, James Comey is Damaging Our Democracy

(esp)

https://lawprofessors.typepad.com/whitecollarcrime_blog/2016/10/endless-investigations-.html

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