Vital questions FBI's Director Comey failed to answer

At the beginning of his July 5 statement the FBI’s Director Comey made two related points:

I have not coordinated or reviewed this statement in any way with the Department of Justice [DOJ] or any other part of the government. They do not know what I am about to say.

The investigation began as a referral from the Intelligence Community Inspector General [ICIG] in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State.

These points bring up two questions Director Comey failed to answer:

Question A: Who defined the terms of reference the FBI followed in conducting its investigation?

Question B: What were these terms of reference?

A bit of elementary logic can help answer these questions.  We have five general categories of information in Director Comey’s July 5 statement:

(I) Findings of fact regarding Hillary Clinton’s use of a personal e-mail server during her time as secretary of state.

(II) Identification of legal statutes relevant to a determination whether these facts constitute a violation of statutes identified.

(III) Determination whether these facts constitute violations of statutes.

(IV) Determination whether violations are prosecutable.

(V) Recommendation whether the DOJ should prosecute Hillary Clinton.

As Director Comey said, the ICIG tasked him to do (I) – which would be similar to contacting the Bureau to ask them to investigate a kidnapping.

What about (II)-(V)?

It is highly unlikely that the ICIG tasked Director Comey to do (II)-(V), because these are tasks that only a major judicial component of the federal government has the authority to issue.  The Supreme Court does not do such things, and a federal judge would be out of a job if he/she tried, which leaves the DOJ as the tasking authority for (II)-(V).  It is also highly unlikely that Director Comey, a former prosecutor, would have gone ahead with (II)-(V) on his own initiative.

Now, suppose Director Comey had opened his July 5 statement this way:

On [fill in date], the attorney general of the United States, Loretta E. Lynch, tasked the FBI to conduct an investigation of Hillary Clinton’s use of a personal email server during her time as secretary of state, taking into account an initial referral from the Intelligence Community inspector general. I am here today to report our findings.

Why didn’t Director Comey do that?

The most obvious answer is that such a statement would have informed Congress that, in effect, an official DOJ document of record exists formally tasking the FBI to conduct an investigation of Hillary Clinton and defining its terms of reference.

What’s wrong with telling Congress that such a document exists?

The most obvious answer is that such an admission would have been followed by a congressional request for a copy of it as well as a copy of the official FBI document of record proving that each DOJ task was carried out.  Director Comey’s July 5 statement contained only what could be disclosed to a general audience and was probably a summary of a much longer and more detailed document.

So, by skipping an answer to Question A, Director Comey was also able to skip having to answer Question B, thereby avoiding having to turn over to Congress two very revealing and potentially embarrassing documents.

I suggest that Congressman Jason E. Chaffetz (R-Utah), chairman of the House Committee on Oversight and Government Reform, write to Director Comey to request copies of these documents and go from there.

At the beginning of his July 5 statement the FBI’s Director Comey made two related points:

I have not coordinated or reviewed this statement in any way with the Department of Justice [DOJ] or any other part of the government. They do not know what I am about to say.

The investigation began as a referral from the Intelligence Community Inspector General [ICIG] in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State.

These points bring up two questions Director Comey failed to answer:

Question A: Who defined the terms of reference the FBI followed in conducting its investigation?

Question B: What were these terms of reference?

A bit of elementary logic can help answer these questions.  We have five general categories of information in Director Comey’s July 5 statement:

(I) Findings of fact regarding Hillary Clinton’s use of a personal e-mail server during her time as secretary of state.

(II) Identification of legal statutes relevant to a determination whether these facts constitute a violation of statutes identified.

(III) Determination whether these facts constitute violations of statutes.

(IV) Determination whether violations are prosecutable.

(V) Recommendation whether the DOJ should prosecute Hillary Clinton.

As Director Comey said, the ICIG tasked him to do (I) – which would be similar to contacting the Bureau to ask them to investigate a kidnapping.

What about (II)-(V)?

It is highly unlikely that the ICIG tasked Director Comey to do (II)-(V), because these are tasks that only a major judicial component of the federal government has the authority to issue.  The Supreme Court does not do such things, and a federal judge would be out of a job if he/she tried, which leaves the DOJ as the tasking authority for (II)-(V).  It is also highly unlikely that Director Comey, a former prosecutor, would have gone ahead with (II)-(V) on his own initiative.

Now, suppose Director Comey had opened his July 5 statement this way:

On [fill in date], the attorney general of the United States, Loretta E. Lynch, tasked the FBI to conduct an investigation of Hillary Clinton’s use of a personal email server during her time as secretary of state, taking into account an initial referral from the Intelligence Community inspector general. I am here today to report our findings.

Why didn’t Director Comey do that?

The most obvious answer is that such a statement would have informed Congress that, in effect, an official DOJ document of record exists formally tasking the FBI to conduct an investigation of Hillary Clinton and defining its terms of reference.

What’s wrong with telling Congress that such a document exists?

The most obvious answer is that such an admission would have been followed by a congressional request for a copy of it as well as a copy of the official FBI document of record proving that each DOJ task was carried out.  Director Comey’s July 5 statement contained only what could be disclosed to a general audience and was probably a summary of a much longer and more detailed document.

So, by skipping an answer to Question A, Director Comey was also able to skip having to answer Question B, thereby avoiding having to turn over to Congress two very revealing and potentially embarrassing documents.

I suggest that Congressman Jason E. Chaffetz (R-Utah), chairman of the House Committee on Oversight and Government Reform, write to Director Comey to request copies of these documents and go from there.