The FBI director had a choice in the new Clinton email probe: Follow custom, or go public

FBI Director James B. Comey testifies before Congress.

Oct. 29, 2016 6:40 PM PT

Reporting from Washington — Ever since federal agents concluded this summer that they had no case against Hillary Clinton over mishandling classified information, FBI Director James B. Comey has been in a bind.

He could either take the traditional approach of keeping mum or publicly explain his reasoning. A man unafraid of the spotlight, Comey decided then to address the matter head-on, as he did again Friday in telling lawmakers that agents were reviewing newly discovered emails that may be pertinent to the investigation.

Comey, confidants say, wanted to maintain transparency in the face of multiple pressures: from both political parties, agents, former agents and his bosses at the Justice Department. But by making such a move just 11 days before the election, he also thrust the FBI into a glare as harsh as klieg lights and influenced a presidential race more deeply than the bureau ever has.

“He has been trying to thread this needle between keeping things close to the vest, like we typically do, and explaining matters to the public because this is such an unusual and public case,” said a colleague who requested anonymity to speak freely. “It is a really narrow window. And he would acknowledge it hasn’t always worked out the way he hoped. He was going to be damned if he did, and damned if he didn’t.”

And damned he was.

Democrats reacted with frustration and anger over both the announcement and its vague nature. “It’s not just strange. It’s unprecedented, and it’s deeply troubling,” Clinton said Saturday at a rally in Daytona Beach, Fla. “Voters deserve to get the full and complete facts.”

Four Senate Democrats, including Sen. Dianne Feinstein of California and Vermont Sen. Patrick Leahy, the ranking member on the Judiciary Committee, demanded a briefing from Comey by Monday.

Even some Republicans condemned Comey for stepping into the race, though most expressed glee that Clinton’s emails were suddenly a dominant topic again at this late stage.

“Hillary has nobody to blame but herself,” GOP nominee Donald Trump said before thousands at a packed livestock arena in Golden, Colo.

Comey, who served in Justice Department posts in the George W. Bush administration, learned of the new developments in the investigation into Clinton’s use of a private email server on Thursday from agents, law enforcement officials said.

He was told that investigators found a trove of emails related to Clinton’s server during their separate probe into whether Anthony Weiner, a former New York congressman and the estranged husband of Clinton aide Huma Abedin, had violated federal law while sexting a teenage girl in another state. The emails were on a laptop jointly used by Abedin and Weiner.

A cursory review indicated no emails were sent to or from Clinton, but some were forwarded messages from Abedin to herself and others were emails between her and other Clinton aides, a law enforcement official said. In briefing Comey, agents said further investigation was needed to determine whether classified information had ended up on Weiner’s device, a law enforcement official said.

Though agents had seized the laptop with a judge’s authorization, that order did not grant them permission to examine Abedin’s correspondence because it only applied to the investigation into Weiner.

To review the contents of Abedin’s emails, agents told Comey they needed another court order, a request he granted. Such an order would also need approval from the Justice Department, and officials there were weighing how to respond, a law enforcement official said.

No evidence has emerged that the emails had been withheld by Clinton or her aides, law enforcement officials said.

Comey consulted with senior Justice Department officials and was urged not to disclose any developments in light of long-standing guidelines, according to two officials briefed on the matter. Atty. Gen. Loretta Lynch was not involved in the discussions, they said.

The FBI and Justice Department rarely discuss details of ongoing investigations, and they are urged to avoid even the appearance of politically motivated investigations.

“Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party,” former Atty. Gen. Eric Holder wrote in a 2012 memo.

But Comey concluded he had to go public because he had told the world in July that the probe was completed. He strongly echoed those comments in sworn congressional testimony and was concerned that if the bureau waited until after the election, it would be accused of playing politics and withholding information from the electorate.

“Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed,” Comey wrote in an email to bureau employees Friday. “I also think it would be misleading to the American people were we not to supplement the record.”

Comey’s step was set in motion months ago, some close to him suggested, when Lynch drew sharp criticism over allowing former President Bill Clinton to come aboard her plane on an Arizona tarmac for a chat. Lynch conceded the meeting “cast a shadow” over the department and announced she would accept the recommendations of career agents and prosecutors investigating the case, as well as the FBI director.

“That was the tipping point,” said a second Comey colleague. “He didn’t have a choice after that. … He kind of had to take a bullet for her if the government had any chance to prove the case was not shaped or altered by politics.”

Though most agents, especially those investigating the Clinton case, agreed with Comey’s decision not to recommend criminal charges, they continue to grapple with him stepping so boldly into the public fray, according to interviews with current and former agents.

“I was shocked by it,” Ronald Hosko, a former top agent, said in describing Comey’s public approach to the case. “But I understand why he did it. In his mind, he had no choice. It was such an unusual and public case, and he had to be transparent. But by going public like that, being transparent, now he can’t stop doing that. He has to keep talking about it. I struggle with the decision he made. Was it the right call? I think so. But it wasn’t an easy one.”

Hosko and other former agents were concerned that the decision ultimately could undermine the bureau’s reputation for being an apolitical law enforcement agency, especially in such a highly partisan climate.

Comey, who took the top FBI job in late 2013, replaced the low-key Robert Mueller, who likely would have “written up his findings and shipped them across the street to be announced by the Justice Department,” according to a top FBI official.

But Comey — who stands 6 feet, 8 inches — is far from low-key. He regularly addresses reporters and relishes being the bureau’s public face. He also isn’t afraid of confrontation, as evidenced most notably by his refusal in 2004 as deputy attorney general to reauthorize the Bush administration’s warrantless wiretapping program.

Comey has acknowledged that his approach has no precedent, telling Congress in September that “there’s never been this kind of transparency in a criminal case, ever.” With seven more years in his 10-year term, he knows he will continue to be dogged by questions about the case, even if he is growing tired of answering them.

He sarcastically told a think tank in September that “obviously I want to talk about the email investigation while I’m here.” Later, he quipped to the same audience that “my children, again, discipline me not to go on Twitter because apparently people say bad things about me on Twitter.”

Times staff writers Chris Megerian in Daytona Beach, Fla., and Lisa Mascaro in Golden, Colo., contributed to this report.

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UPDATES:

7:40 p.m.: This story was updated with more details on a court order investigators sought.

6:40 p.m.: This story was updated with details on the investigation.

4:45 p.m.: This story was updated with Senate Democrats demanding a briefing from Comey.

4:05 p.m.: This story was updated with comments from Clinton and Trump.