Politics, White-Collar Crime

Jim Comey And The Risks Of Believing Too Much In Your Own Reputation

Say nothing, have it leak, and be accused of a cover-up; or say something, and have it blow up.

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FBI Director James Comey Testifies To House Judiciary On Oversight At The F.B.I.This week, I was going to write about the challenges of sentencing allocution in white-collar cases. But then Matt Kaiser reminded me that if I didn’t say something about the Jim Comey controversy in a white-collar crime column, I might be fired. I’ve actually enjoyed writing this column, so in the interest of self-preservation, I will dip my toe into the Comey waters.

Let me start with a bit of throat-clearing. I don’t know Jim Comey personally, but he was the Deputy Attorney General when I was hired in the Civil Rights Division. I met him once when he was going around and meeting the various people in my section. I remember that he was very tall and very nice. Also, as anyone who has ever worked in the Justice Department to tell you, he has long had an absolutely sterling reputation for integrity. He is seen as the quintessential straight shooter, immune to the vagaries of politics. Until, that is, this past July.

That’s when he committed what may fairly be called his original sin — thinking this was actually about him.

Let me explain that. I know that Jim Comey has a sterling reputation for integrity. Everybody knows Jim Comey has a sterling reputation for integrity. And the problem is, Jim Comey knows that, too. I don’t for one second believe that he is taking sides in the presidential race. I believe that when he held his press conference in July, he did it because he thought he owed the American people an explanation about why no case against Hillary Clinton would be brought.

He was right about one thing. The American people did deserve to know that. Given the amount of evidence that has come out and how this issue was dominating the national conversation, I believe — and I know many people don’t agree with me — that the government had a responsibility to make a decision about what to do with her case and then explain that decision.

The problem is that this explanation should not have come from him. It should have come from his boss, the Attorney General, who actually decides whether to prosecute someone. And that’s when the problem started.

The problem was that Comey knew that not recommending charges would inevitably invite speculation that his motives were political. He, like just about everybody who knows him, knows that his motives weren’t political. So he felt the need to explain that to the American people — to convince them that in his opinion, the evidence just wasn’t there.

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In doing that, he made mistake of thinking this was actually about him.

The fact is, most of the American people have no idea who Jim Comey is. They don’t know if he’s a good guy or a bad guy, a career prosecutor or a political hack. So when he suddenly inserts himself into a debate like this, people are left to wonder why he would do that — what’s his motive?

People tend to default to easy explanations. In July, the easiest explanation was that he wanted to put the fix in for Hillary Clinton. I think that’s silly, but it is the one that requires the least thinking, so naturally it became very popular very fast. So, too, the new narrative that he’s trying to put the fix in against her.

Fast forward to last week. Suddenly, the FBI comes across a whole new tranch of potential Hillary emails while investigating something that it absolutely shouldn’t be investigating.

And let’s pause there for a moment. The idea of the FBI’s investigating Anthony Weiner for sexting with an underage girl is just idiotic, to use the legal term for it. At most, this should be a state case. (They do make state prosecutors, you know.) The FBI should’ve taken one look at that pathetic man and said, “We are not going to have anything more to do with this idiot. NYPD, he’s all yours.”

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Instead, the FBI decided that we needed to make a federal case out of someone who appears to be just a well-connected sex addict. And now, FBI, you reap what you sow.

But back to Comey. The emails come in. Comey now realizes he may have to walk back what he said in July. So he’s faced with a dilemma: say nothing, have it leak, and be accused of a cover-up; or say something, have it blow up, and be accused of interfering with the election.

There was no good outcome. And that’s because he had, in July, made it about him. He put his name on the line when he held that press conference. Now, his name would be on the line again, no matter what he did.

So he went public. Better, I imagine he thought, to be pilloried for saying too much than condemned for not saying anything at all.

If you speak out, you can at least say you were just being honest. And Jim Comey, as Jim Comey and everyone else knows, is nothing if not honest.

I don’t know what I would have done if I were him. He had no good options. I think the real problem is that, in July, he made it about him. He thought his name was on the line. But it wasn’t. By making it about him in July, it became about him again last week.

I think Jim Comey is a good man. But I think he made a grievous error in judgment when, probably without realizing he was doing it, he made his decision on the emails look like a personal one, not an institutional one. And now he’s paying a heavy price for that.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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