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OCTOBER SURPRISE

Did FBI director James Comey violate the Hatch Act?

Reuters/Joshua Roberts
Should he have been silenced by an administrative directive?
  • Ananya Bhattacharya
By Ananya Bhattacharya

Tech reporter

Published Last updated This article is more than 2 years old.

Less than two weeks before the US votes, the director of the Federal Bureau of Investigation, James Comey, announced that “the FBI has learned of the existence of emails that appear to be pertinent to the investigation“ into Hillary Clinton’s use of a private server. But with the clock ticking, the FBI has failed to divulge any pertinent information from the new emails, making its big announcement look deliberately unfair to the Clinton campaign.

On Oct. 30, Senate minority leader Harry Reid, who called himself a past supporter of Comey, suggested that the FBI director may have broken a federal law with his announcement. In a letter to Comey (pdf) that Reid released to the public, the Democratic leader said that Comey’s actions “violate the Hatch Act, which bars FBI officials from using their official authority to influence an election.”

So, what is the Hatch Act? The federal law, passed in 1939 after concerns about government employees being used to influence the outcome during the 1938 congressional elections, is designed to ensure that all federal workers—from the US Postal Service to the FBI—undertake their roles in a nonpartisan fashion. (The only people exempt are the president, the vice president, and a handful of other high-level elected officials.)

The Hatch Act bars any ”activity directed at the success or failure of a political party“—which is the part Reid is accusing the FBI director of violating. Comey’s actions also reportedly defied the wishes of attorney general Loretta Lynch and broke with traditional Justice Department practices.

The law does not require that an employee’s actions actually affect election results—it is their intent that is scrutinized. Richard Painter, the White House’s chief ethics lawyer from 2005 to 2007 has filed a complaint against Comey with the Office of Special Counsel and the Office of Government Ethics, and he called Comey’s actions an “abuse of power.” “The F.B.I.’s job is to investigate, not to influence the outcome of an election,” Painter wrote in an op-ed for the New York Times.

Reid also suggests in his letter to Comey that the FBI has been deliberately sitting on “explosive information” regarding Donald Trump’s close ties with Russia, despite calls to release it to the American public. ”The double standard established by your actions is clear,” Reid wrote. “As soon as you came into possession of the slightest innuendo related to Secretary Clinton, your rushed to publicize it in the most negative light possible.”

The Hatch Act is an administrative directive, not a criminal offense, and violating it—if that is indeed what Comey did—carries no jail time or even mandatory firing. Of course, since Comey serves at the pleasure of the president, he can be removed at any time. His tenure is slated to continue until 2023.

On Oct. 30, the president’s office issued a statement saying that Comey is “a man of integrity and is not trying to influence the US presidential election by announcing scrutiny of additional emails linked to Democrat Hillary Clinton’s private server,” Reuters reported. White House spokesman Josh Earnest added that he has no “independent knowledge” of what led Comey to publicly discuss the issue.

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