FBI director James Comey's late-campaign letter about Hillary Clinton's e-mails has tightened the presidential race – and Michael Chertoff, the former secretary of homeland security under George W. Bush, has no doubt the FBI chief was wrong to send it.
Mr. Chertoff, a Republican who has endorsed Ms. Clinton, has a lot of experience with FBI investigations, as a former U.S. attorney and later the assistant U.S. attorney-general in charge of the U.S. Department of Justice's criminal division.
He said that Mr. Comey broke with long-standing practice at the Justice Department, painting himself into a corner earlier in the e-mail investigation, out of a "misguided sense that this was being transparent." He ended up both breaching his responsibility for fairness and inappropriately intruding on the last weeks of a presidential campaign.
"If you're not going to charge someone, you don't give a commentary or reveal things from the investigation," Mr. Chertoff said of Mr. Comey's actions. "I think although maybe he had a misguided sense that this was being transparent, transparency is not the paramount value – it's fairness."
Mr. Comey's Oct. 28 letter revived talk of the e-mail scandal and appears to have reduced Ms. Clinton's lead. And it sparked hot debate since then about whether the FBI chief acted irresponsibly. On Wednesday, U.S. President Barack Obama suggested it was wrong for the FBI to "operate on incomplete information."
As Secretary of State between 2009 and 2012, Ms. Clinton used a private e-mail account on a non-government server, rather than a State department e-mail – leaving them outside government oversight but also outside government security protocols.
In July, Mr. Comey announced that after an extensive investigation, the FBI would not recommend charges. But he also revealed unusual detail, calling Ms. Clinton's handling of her e-mail extremely careless, revealing the number of classified missives in her private e-mail account, and outlining some evidence gathered.
Last week, Mr. Comey wrote a three-paragraph letter to congressional leaders revealing that in the course of a separate investigation, the FBI had found new e-mails that "appear to be pertinent," and would re-open investigation to assess whether they were significant.
To Mr. Chertoff, that amounted two mistakes, starting in July, breaking with long-standing practice.
"I don't attribute bad motives to the director," Mr. Chertoff said. It was reasonable for Mr. Comey to announce in July that the investigation would be closed with no charges, he said. "But by going further and starting to give his opinion about how she handled her e-mails, or starting to put out copies of the FBI interviews, that really broke a long-standing Department of Justice procedure. Which is this: If you want to say something bad about somebody, you charge them."
Information is revealed when charges are laid, and prosecutors then try to prove it in court, Mr. Chertoff said, but it's unfair to reveal a snapshot of investigation evidence when no one is charged.
"If [Mr. Comey] thought what he was going to do was insulate himself, he didn't succeed in doing it. What he did succeed in was gratuitously giving commentary where the other person doesn't have the right to respond," Mr. Chertoff said in an interview during a visit this week to Ottawa, where he was attending the Global Policy Forum of the Centre for International Governance Innovation.
The standard-practice rules are supposed to stop officials from injecting their own judgment, Mr. Chertoff argued, and in Mr. Comey's case, saying too much in July painted him into a corner when new e-mails were found.
"Once [Mr. Comey] put that out there, then I think he found himself in a position where, once they have potential to find new e-mails on someone else's device, he felt like he was caught, like now he has to say something," he said. "The problem is that's unfair too, because there's no reason to believe there's anything of significance there. But it injects something in the campaign at the last minute. Which breaks another practice, which is we don't put things out in the last couple weeks of a campaign."
Mr. Chertoff said he won't hazard a guess on whether Mr. Comey's actions could swing the outcome of the election. He noted the questions about Ms. Clinton's e-mails have been around for a long time, and most voters have probably made up their minds on it. But he said it will change the dynamics: "It does have the effect of shifting the discussion in the last week away from policy and judgment, and things that matter to Americans, into did she or didn't she?"