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The Hatch Act and James Comey’s shame

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What is the Hatch Act? It is a 1939 law named after a lifelong Democrat, Carl Hatch, who was U.S. Senator from New Mexico for sixteen years before being elevated to the Federal bench by President Truman. Hatch, who was chairman of the Senate Committee on Privileges and Elections, was bothered by partisan political activity by Federal government employees, Democratic and Republican, in the election process. The Act named after him forbade such employees from engaging in such activities.

The Act’s key wording is contained in the U.S. Code Section 7323: “a [government] employee may not use his official authority or influence for the purpose of interfering with or affecting the result of an election.” A sub-section of the Act (B II) specifically identifies employees of “the Federal Bureau of Investigation” as being subject to the Hatch Act.

The penalty for violating the Hatch Act is this: An employee or individual who violates…this title shall be removed from his position, and funds appropriated for the position from which removed thereafter may not be used to pay the employee or individual.”

We come now to the case of James Comey, the current FBI director, who this past week “sent Congress a brief, inscrutable, election-shaking letter about emails that may or may not be new or relevant to the previously concluded investigation in Hillary Clinton’s private email server.” Comey, who we must infer clearly understood the bombshell nature of his letter, which came little more than a week before the election, tried to defend himself by claiming he was obligated to inform the Congress as soon as he learned that new information pertaining to the emails had become available. The problem with this explanation, it now appears, is twofold: (1) Comey “knew nothing about the substance of the emails,” which suggests a distasteful rush to judgment (they could have been cookie recipes), and (2) the emails were neither sent to Hillary Clinton, nor were from her, but instead were found on the computer of Anthony Weiner (and I assume you all know who he is). So “breathtakingly rash and irresponsible” was this decision by Comey, says the New York Times, that even the conservative Republican chairman of the Senate Judiciary Committee, Charles Grassley, sent Comey a letter stating, “Your disclosure is not fair to Congress, the American People, or Secretary Clinton.”

When is the last time you heard a senior Republican elected official complain that something wasn’t “fair” to Hillary Clinton? The answer is Never, which means that what Comey did is pretty egregious.

Who is James Comey? We know he is a Republican. He was appointed a Deputy Attorney-General by President George W. Bush. He temporarily left government, to make some serious money, by going to work as General Counsel for Lockheed Martin, but was subsequently (2010) appointed FBI director by President Obama. Why would a liberal Democratic President appoint a career Republican, and one with close ties to the military-industrial complex, to head up the FBI? The best answer seems to be that Obama—already the target of a declaration of war by the Republican Majority Leader, Mitch McConnell—realized he would never get the Senate to confirm a Democrat as FBI director. The move also reinforced the notion, which Obama was keen to advance, that Obama was a bipartisan President, anxious to work with a Republican Party that clearly was as hostile to him as any political party has ever been towards any sitting President.

It is obviously impossible to know what Comey’s true motive was in writing that notorious letter to Congress. His claim that he was simply keeping them informed about new information might be true; it might equally well, and more plausibly, be totally bogus. He might have done it deliberately to tilt the election to Trump (and Trump may well be elected because of Comey’s action). Short of a confession by Comey, which isn’t very likely, we’ll never know, which means that it cannot be determined if he actually violated the Hatch Act. It seems likely that he did. That his behavior  “influence[d]…[and]  interfer[ed] with or affect[ed] the result of an election” cannot seriously be denied, by even the most ardent Republican.

Which leaves us—where? Should Hillary Clinton be elected President, Comey’s days at the FBI are likely numbered: she will have the power to fire him, and should. Should Trump be elected, no doubt he will sing Comey’s praises, but Trump’s advisors will tell him he’ll have to let Comey go sooner or later (his actual term doesn’t end until 2020), because of the widespread perception that Comey enabled Trump. But it may turn out that neither Hillary Clinton nor Donald Trump will have to deal with Comey. Yesterday, the conservative columnist for the Wall Street Journal, Bret Stephens, urged Comey “to do the right thing” and “resign” now. By sending that nefarious letter to Congress, Stephens writes, Comey “lost the trust of his political masters, his congressional overseers and the American public.” That’s coming from a Republican, mind you, not a Hillary supporter.

Well, whatever Comey does, he will eventually land back into the military-industrial complex, make many more millions of dollars, and try to avoid dining out at Washington’s toniest restaurants, where no doubt many of his former friends will no longer be pleased to run into him.

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