Constitutional Law Expert: Comey Did NOT Violate Law By Announcing Email Investigation

Senate Minority Leader Harry Reid alleges that FBI Director Comey has violated the law by announcing the re-opened investigation into Clinton emails so close to the presidential election.

Is he right?

One of the top constitutional law experts in the United States (and a liberal), Professor Jonathan Turley, says no:

[Reid’s] allegation is in my view wildly misplaced. Reid is arguing that the actions of FBI Director James B. Comey violates the Hatch Act. I cannot see a plausible, let alone compelling, basis for such a charge against Comey.

In his letter to Comey, Reid raised the the Hatch Act, which prohibits partisan politicking by government employees.

5 U.S.C. § 7323(a)(1) prohibits a government employee from “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.”

Reid argued:

“Your actions in recent months have demonstrated a disturbing double standard for the treatment of sensitive information, with what appears to be a clear intent to aid one political party over another. I am writing to inform you that my office has determined that these actions may violate the Hatch Act, which bars FBI officials from using their official authority to influence an election. Through your partisan actions, you may have broken the law.”

The reference to “months” is curious. Comey has kept Congress informed in compliance with oversight functions of the congressional committees but has been circumspect in the extent of such disclosures. It is troubling to see Democrats (who historically favor both transparency and checks on executive powers) argue against such disclosure and cooperation with oversight committees. More importantly, the Hatch Act is simply a dog that will not hunt.

Richard W. Painter, a law professor at the University of Minnesota and the chief ethics lawyer in the George W. Bush White House from 2005 to 2007, has filed a Hatch Act complaint against Comey with the federal Office of Special Counsel and Office of Government Ethics. He argues that “We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway.”

However, Comey was between the horns of a dilemma. He could be accused of acts of commission in making the disclosure or omission in withholding the disclosure in an election year. Quite frankly, I found Painter’s justification for his filing remarkably speculative. He admits that he has no evidence to suggest that Comey wants to influence the election or favors either candidate. Intent is key under the Hatch investigations.  You can disagree with the timing of Comey’s disclosure, but that is not a matter for the Hatch Act or even an ethical charge in my view.

Congress passed the Hatch Act in response to scandals during the 1938 congressional elections and intended the Act to bar federal employees from using “[their] official authority or influence for the purpose of interfering with or affecting the result of an election.” Comey is not doing that in communicating with Congress on a matter of oversight.

Such violations under the Hatch Act, even if proven, are not criminal matters. The Office of Special Counsel -can investigate such matters and seek discipline — a matter than can ultimately go before the Merit Systems Protection Board.

CNN confirms:

violators aren’t going to jail: the Hatch Act is not a criminal statute. Instead, it is an administrative constraint on government employees. The law is enforced by a special independent federal agency — the Office of Special Counsel — which is charged with investigating complaint allegations and, where found to be meritorious, either pursuing a settlement with the offending employee or prosecuting their case before the federal agency that oversees internal employment disputes — the Merit Systems Protection Board. And for presidential appointees like Comey, the Office of Special Counsel submits a report of its findings along with the employee’s response to the President, who makes a decision on whether discipline is warranted.


The Hatch Act provision most commonly invoked in discussions of Comey’s letter is 5 U.S.C. § 7323(a)(1), which prohibits a government employee from “us[ing] his official authority or influence for the purpose of interfering with or affecting the result of an election.”

The key text is the emphasized phrase — which conditions a violation of the statute on whether the employee’s purpose was to interfere with or affect the result of an election. Thus, the Hatch Act does not focus on the effect of the employee’s conduct, but the intent. To that end, if Comey did not intend to interfere with or affect the upcoming election through his letter to Congress, then he did not violate the letter of the Hatch Act.

Given that Obama doesn’t think Comey was trying to influence the election, this is a non-starter.

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  • Silvstr

    Why isn’t Obama and Biden in violation of the Hatch Act??
    They are actively trying to influence the election.

    • JosephConrad

      Excellent! For, Obama could be involved in the Email Case later on in two ways.

      • UnderTheBedMonster

        He’s holed up in the WH pooping his pants real good now. Hope he stays out of the public eye FOREVER. Hopefully he will send all his illgotten money over to Qatar and join HRC there indefinitely.

        She’s packing as we speak to make a quick getaway…….why stay for the fun after she loses?

    • wiley640

      the Hatch act only pertains to gov employees – like appointee like Comey & not to elected officials

    • Wally Wada

      Obama and Biden are elected and are exempt from the Hatch Act. It is only appointees and standard employees that are covered by the Hatch Act. Otherwise, ever elected office holder would violate the Hatch Act by campaigning for himself.

  • dayanmao

    As if anyone should heed anything the spineless, Clinton loving, Harry Reid says.

  • UnderTheBedMonster

    Harry is grasping at straws as usual. The Dems are definitely in coverup mode hoping to shove this all under the rug so voters think their Queen is an honest crook. I sincerely hope Harry, Pelosi and all the other libturds do not get reelected!!!! They all need to be gone from DC

  • ClubToTheHead

    Hillary wants to make Comey the victim of a witch hunt because she now thinks he is a “commie”.

    A man in Hillary’s hometown of Park Ridge, IL, threw a cup of coffee and then attacked a man on the street with a knife because in his fantasy delirium spell cast on him by Hillary, he said the man was a “Russian”.

    Hillary is obviously a witch as demonstrated by the spell she’s cast over this “patriot”.

    “A Park Ridge man remained behind bars this week for allegedly taking out a knife and
    threatening to kill two people in the city’s Uptown area.”

  • Jul 7, 2016 Justice Vs. “Just Us”: Of Course the FBI Let Hillary off the Hook

    The only thing that surprises me is that anyone is surprised by this.

    It seems that our beloved FBI Director is or until very recently was a director and board member of HSBC, which is tightly connected to the Clinton Foundation. Check out some of these links:

    “Mr. Comey’s appointment will be for an initial three-year term which, subject to re-election by shareholders, will expire at the conclusion of the 2016 Annual General Meeting.”

    “Clinton foundation received up to $81m from clients of controversial HSBC bank”

    It’s like a revolving door of money and special projects that the bank and the CF are involved in. This is the same HSBC that was accused of laundering drug cartel money, was heavily involved in the LIBOR scandal, and who knows what else, and all while our esteemed FBI Director James “she didn’t intend it” Comey was part of the senior leadership.

  • Bob

    Loretta Lynch is clearly guilty of violating the Hatch Act. And if they consider a Senator a government employee it seems Reid is doing his best to influence the election now.

    • Wally Wada

      Loretta Lynch can’t be guilty you bozo. She hasn’t published anything. Reid is an elected official and exempt from the Hatch Act. Conservatives are so fact free. Comey was just Barack’s lackey until he did this and now he’s a hero. You have no shame or principles.

      • Mr Boompi

        Is the Attorney General exempt from the Hatch Act? It does not appear so, although in this administration it appears all Democrats are exempt no matter who they are . The law makes no mention of the need to “publish” anything. The law forbids officials paid with public funds from using promises for jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support. Her actions, which include her meeting with Bill Clinton during his wife’s investigation and refusal to bring evidence before a grand jury, are clearly actions which help Hillary Clinton and the Democratic Party politically. The Hillary campaign said she would be retained as AG if she is elected. Maybe in your mind this is not a benefit. Calling me a Bozo doesn’t really help your weak argument. Nor does the fact I’m not a conservative.