The > U.S. presidential race is proving to be a thriller. A fortnight ago, the election slated for November 8 was regarded a slam dunk, with Democrat Hillary Clinton forging steadily ahead of Republican Donald Trump. A new twist resulting from an > unexpected move by the Federal Bureau of Investigation (FBI) could change it all.
Last Friday, FBI Director James B. Comey wrote to Congressional leaders that the investigative agency had found some new emails that could be relevant to a separate investigation into Ms. Clinton’s handling of classified information. This was not a “reopening” of the earlier investigation — in which the FBI had said that Ms. Clinton had not committed a crime but had been “extremely careless” — but a mere evaluation of the emails in question. It is now known that these new emails relate to a former Democrat Congressman, Anthony D. Weiner, the estranged husband of Ms. Clinton’s close aide Huma Abedin. Mr. Weiner is under investigation for sending sexually explicit texts to a teenage girl. While examining his computer and other devices, the FBI stumbled upon emails which it suspects may be relevant to the separate investigation into Ms. Clinton’s private email server case. The FBI wants to be absolutely certain that its previous stand is correct. Closely following the communication to Congress, Mr. Comey shot off a letter to his officers explaining the circumstances under which he wrote the note to Congress.
Mr. > Comey’s move just 11 days before the polls has set the cat among the pigeons. Mr. Trump, who had earlier blasted the FBI for letting Ms. Clinton off the hook, is now praising Mr. Comey for his “guts”. The Democrats are naturally enraged and have stopped short of directly attributing political motives to Mr. Comey, a former Republican, who was appointed to the job by President Barack Obama. The unprecedented situation has opened itself to much speculation which may not subside until after the new President is elected.
Process of investigation The first big question is why Mr. Comey took this controversial step. Conventional wisdom has it that investigation agencies should be extremely sensitive to what is happening around them, especially on the political firmament. They should be scrupulous in avoiding any course of action that would even minimally influence the outcome of any major election in a democracy. Second, no such outfit goes to the legislature or to the public about an investigation in progress, unless demanded by the legal entity that had ordered the investigation. For instance, in India, a progress report is submitted to the judiciary at prescribed intervals. It is invariably a secret document that remains in a sealed envelope with the judge concerned until he or she opens it. There is no obligation whatsoever on the part of the investigating officer to keep anybody informed, unless the assistance of any other agency or a member of the public is sought in order to make progress in an ongoing criminal investigation.
Mr. Comey has defended his action by hinting that if he had not done what he did, Congress could have later accused him of suppressing vital information to aid Ms. Clinton. This seems far-fetched considering that the emails in question did not prima facie suggest any misdemeanour on Ms. Clinton’s part. Nor are they directly connected to the charge levelled against her. Ms. Clinton is naturally angry and has demanded that the FBI clearly tell the nation what the emails carried. She is probably sure that these emails do not establish anything adverse against her. Also, if Ms. Abedin was embroiled in a feud with her husband, it was her own business and cannot be cited as her boss’s fault. The fact is that the FBI might not oblige Ms. Clinton and could take its own time to come its conclusion. Meanwhile, damage may have been already been done to Ms. Clinton’s reputation and her electoral prospects.
Mr. Comey also took his extraordinary step in defiance of the Justice Department (DoJ) headed by Attorney General Loretta Lynch, to whom the FBI reports. Once the DoJ got wind of Mr. Comey’s proposal to take Congress into confidence, several of its officials are said to have told him that what he planned to do was irregular and that he better stay away from such a course of action. Of course, the advice was never put down on paper. It seems as though the Director was keener to protect his reputation for integrity than to play by the book and submit himself to the writ of the DoJ. Just imagine the bedlam that would have ensued in India in such a scenario.
A political battle The controversy is burgeoning by the day and Republicans have taken full advantage of it. They are building on the earlier charge that Ms. > Clinton deleted 33,000 emails from her private server. On their part, the Democrats have turned the heat on Mr. Comey saying that he has violated the Hatch Act that prohibits the FBI from influencing the outcome of any election. The spat is likely to become uglier after the election. If Ms. Clinton wins, she may want to remove Mr. Comey from his post. But she may not succeed in doing so because an FBI director has a ten-year tenure, compared to the measly two years given to a Central Bureau of Investigation chief, and Mr. Comey has seven more years to go. Also, his is a Senate-ratified appointment. To revoke it, the Democrats would have to move the Senate where they are in a minority. This is a fascinating prospect, something that has not happened in American history.
The FBI-Democratic Party conflict points to how an important investigation agency can get involved in a political battle impinging on the future of a major democracy. The moral cannot be lost on India where the CBI has repeatedly been the favourite whipping target of different political parties. The fact that the organisation has to walk a tightrope all the time solely for giving no room for complaint of partisanship is often ignored by the judiciary and the media. The CBI may not be a paragon of virtue, but it has at the same time a lot to be proud of by way of unearthing many scandals that would have remained fossilised.
R.K. Raghavan is a former CBI Director.
