The Original Sin

We can all list behaviors we consider sinful.

My list begins with self-righteousness, defined as moral smugness combined with a troubling lack of self-reflection and humility. Enormous harm is done by folks who are absolutely convinced that they are in possession of Truth, and that their actions–no matter how inconsistent with social or constitutional norms–are therefore justified. When self-righteous people are in positions of authority–whether they are Governors or FBI officials–their unshakable belief in their own moral superiority can undermine both liberty and democratic processes.

As Learned Hand famously put it, “The spirit of liberty is the spirit which is not too sure that it is right.”

Which brings me to FBI Director James Comey.

As two former Deputy Attorneys General wrote in Sunday’s Washington Post, the FBI

operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election. These traditions protect the integrity of the department and the public’s confidence in its mission to take care that the laws are faithfully and impartially executed. They reflect an institutional balancing of interests, delaying disclosure and public knowledge to avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

It is precisely this “balancing of interests” that self-righteous people cannot understand.

The modern world, to the consternation of many people, rarely gives us a bipolar choice between good and evil, black and white.  We live–like it or not–in perpetual shades of gray, a world where “on the one hand” competes with “on the other hand,” and ethical decision-making more often than not requires us to balance competing goods. Unfortunately, ambiguity is intolerable to people who live in a Manichean world where they are on the side of righteousness.

There has been an eruption of anger over Comey’s decision to make public the discovery of emails found on devices used by then-Congressman Anthony Weiner and his wife, Huma  Abedin, a close aide to Hillary Clinton. The criticism–much of it from Republicans within the FBI– has been harsh: not only was the disclosure inconsistent with Department of Justice traditions, not only did Comey ignore his boss, the Attorney General, who told him to abide by departmental regulations, but he admitted he didn’t know whether the emails were significant, or mostly copies of messages the Department had previously reviewed. He hadn’t seen them.

Partisans, noting that Comey is a Republican, have accused him of political motivations. Perhaps, but my reading is different. The way in which he announced the FBI’s original conclusion not to recommend charging Clinton (a result entirely unsurprising to most lawyers) provided a clue. During that press conference–itself a violation of normal procedures–he coupled the FBI’s finding that no laws had been broken with a highly offensive, unnecessary and self-serving lecture about “carelessness.”

Comey has defended his decision to inform Congress of the existence of additional emails  with reasoning that reeks of self-righteousness and an unseemly focus on his own reputation–consequences to the integrity of the FBI and the Presidential campaign be damned.

As the former Attorneys General concluded,

Justice allows neither for self-aggrandizing crusaders on high horses nor for passive bureaucrats wielding rubber stamps from the shadows. It demands both humility and responsibility.

Ironically, unless I miss my guess, Comey’s utter lack of such humility has now destroyed the reputation that meant more to him than the consequences of his decision for the nation. His incredible arrogance has also probably ended his career. But in the age-old tradition of the self-righteous, he will undoubtedly consider himself a martyr.


  1. Sheila:
    I saw his decision to release the information in a different light. Mr. Trump has gone to such great lengths to delegitimize the election by claiming that it was rigged, he has many people scared about a revolutionary uprising if Trump loses. Can you imagine the rage if Trump lost the election and then Comey disclosed the resumption of the investigation? It would have given Trump grounds to sue and his cult followers even greater outrage against the FBI, against the government, and against the office of the president. This way, Clinton may have a harder row to hoe, but if she wins, Trump cannot complain that the FBI helped her win.

  2. John; Comey SAID he closed the E-mail investigation in July but, Hillary’s E-mails and that single server have never been out of the news since shortly after she resigned her position as Secretary of State. Did Comey make a poor decision in July or did he lie about closing the investigation? He overstepped his authority as head of the FBI to privately contact some members of Congress 50 days after the deadline to disclose such information – or disinformation because he is not in possession of any facts pro or con on the current E-mails. He needs to be removed immediately; the damage he has caused Hillary, the Democratic party and their constituents along with voters who are going outside their party lines to prevent Trump from being elected and has AGAIN made this entire country a laughing stock before the world leaders. He has shamed us as a nation above and beyond the shame he brought upon himself and the Federal Bureau of Investigation. My pride in this country and myself as an American is sinking lower with each passing day…due to the power given one man whose sexual abuse of women alone is a bigger embarrassment than J. Edgar Hoover in his lace dresses. I doubt if any major country would consider passing a law to prevent J. Edgar from crossing their border…Great Briton and Canada have both made that consideration public regarding Trump. Comey has aided and abetted Donald Trump with his foolish decision against all common sense as well as violating internal ordinances he should be aware of.

  3. Here is what gets my blood boiling. How many very expensive man hours has the FBI wasted on this whole mess… e-mails and one loony man’s fixation with his dick? Those thousands (no doubt) hours should have been used going after the heroin dealers and smugglers here in the US and Indiana in particular. Instead, the FBI spends its time working for the Republican Congress. Yeah, I am one very angry old grandma today.

  4. “This is no trivial matter. 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. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.”

    Written by Richard W. Painter, a professor at the University of Minnesota Law School, was the chief White House ethics lawyer from 2005 to 2007.

  5. I’m with you, Theresa. This country’s obsession with sex has reached ridiculous proportions when a candidate for president brags about the size of his penis and encourages celebrities to use their celebrity to grab pussies, we are in a sad state of affairs (no pun intended). This, plus the reincarnation of “Weinergate” on Friday will list this as the first pornographic presidential election in history.

    Please; let it be the last.

  6. JoAnn: see my follow up post to Professor Kennedy’s “Justice” post yesterday. Comey can be fired by President Obama, but the political fall-out that would take place would be much worse for Hillary than what has already occurred. Unless he resigns, Comey is probably going to be Director until 2023.

  7. It would be politically unwise for the President to fire Comey/ If Hillary is elected, she cannot fire him without having it reflect poorlly on her. It is questionable whether they can work together, although Hillary has proven over time to be very forgiving of political enemies (see her time in the Senate when she worked closely with Republicans who had worked against her and Bill). I think it is incumbent upon Mr. Comey to submit his resignation and bow out gracefully.

  8. My guess is that there is little or nothing to all this brouhaha stirred up by Comey’s vague and content-less suggestion that some of Hillary’s emails (if they are hers) deserve further investigation. I observe first that Comey is through, a (politically speaking) dead man walking. If he has anything else to tell us, let’s hear it, except that this time the interpretation of what he has found, if anything, will not be left to him but to the American people. He apparently has other fish to fry with his mistimed and vague discussion of what he has or has not found, and I for one do not trust any conclusions he may arrive at from viewing such evidence. Before this is over (and time is of the essence with an election coming up next week), I think it altogether possible that this will be much ado about nothing and that Trump’s last gasp chatter about Watergate comparisons will increase rather than decrease Hillary’s vote count. Mr. Comey, tell us what your factual investigation has found and leave its interpretation to us.

  9. Ken Glass; Matthew 7:15.

    Rather than sheep’s clothing, beware the false prophet wearing a $2,000 suit and elongated red tie.

  10. David F and Peggy Hannon; can the FBI remove him for dereliction of duty or some suitable charge? They must have internal ordinances, laws and guidelines in place to require and control actions by all levels of their agents. Comey has blatantly added support to Trump and indirectly made accusations against Hillary with no evidence but in a different manner than Debbie Wasserman-Schultz supported Hillary as nominee.

    WTF has been done RIGHT in this past year regarding this election with a total of 20 possible presidential nominees? This entire situation would be an elongated SNL sitcom series if our very lives and the survival of this country were not at stake.

  11. JoAnn: Ostensibly the Director of the FBI’s direct boss is the Attorney General. But as a practical matter, the real authority for firing him belongs only to the sitting President. If it were to be found that Comey violated the Hatch Act, the usual remedy would be termination, but off-hand, I don’t know who or what agency enforces the Hatch Act.

  12. David F; any idea if the government knows who or what agency enforces the Hatch Act – or if they are aware of the Hatch Act.

    Sorry if I sound as if I have lost all faith in the current government but…I have lost all faith in the current government…and our current prospects.

  13. Professor Kennedy, I have given much thought to your hypothesis that it was Hubris, self-righteousness, and the need to be right that was behind Director Comey’s decision to put a noose around Hillary’s neck and let her swing in the wind. While I’m sure all of those character traits played a role in his decision, I’m not so sure that something more wasn’t involved.

    None of us, of course, including myself have any way of knowing with any certainty what Comey’s motives and intentions were or are. But we do know a few things:

    1) At the conclusion of the original investigation into Hillary’s State Department e-mails, Comey was clearly disappointed that he was yet another Republican who was unable to get the goods on, prosecute, and convict the Clintons for all their “crimes and misdeeds.” His public scolding of her for being reckless in handling her emails, which in and of itself was both highly unprofessional, unethical, and unprecedented for a law enforcement officer to do, pretty much establishes that he was going out of his way to throw her Republican opponents a bone to beat her over the head with, and he doesn’t think she should be President.

    2) Comey knew what the policy of the DOJ and the FBI is concerning not disclosing information pertaining to on-going investigations in general, and not doing so within sixty days before an election in particular. And the DOJ made it very clear to him that he shouldn’t do it and why, and he did it anyway. Which I think may be the strongest point for the self-righteous hypothesis.

    3) It has been reported that no one in the FBI had yet obtained a warrant for the emails on Weiner’s computer, let alone read any of them to have even an inkling that any evidence of a crime having been committed by anyone, let alone Clinton, would be found in them. Nonetheless, Comey told Congress and the public that the emails on Weiner’s computer “appear” to be pertinent to the investigation into Clinton’s State Department e-mails, a fact which he clearly couldn’t know was true at the time he wrote it and made it public. IMO a very egregious violation of professional ethics in and of itself.

    4) Comey’s memo to his employees at the FBI makes it clear he knew his letter to Congress, coming just 11 days before the election, would undoubtedly impact and perhaps influence the outcome of the election. But he sent the letter anyway knowing that would probably be the case. Again fits the self-righteous theory.

    Everyone, of course, can draw their own conclusions about why Comey may have done it, but I think the facts known so far strongly suggest it wasn’t out of any sense of duty or of a legal or moral obligation to correct (what was there to “correct?”) or update his sworn testimony to Congress as he’s trying to play it. Regardless, IMO, the only honorable thing Comey could do now is immediately tender his resignation to President Obama.

  14. David F.,

    “but I think the facts known so far strongly suggest it wasn’t out of any sense of duty or of a legal or moral obligation to correct”

    I take issue with your above statement. I agree with you that he is guilty. But don’t forget he was only carrying out his orders. Comey did it out of a sense of duty.

  15. Marv; who gave the orders? And why?

    David F; the heart of your clearly written comments and this entire situation lies in one word in your last paragraph, “honorable”. There has been little if anything “honorable” about this entire election process. How can we, as Americans, hope for an “honorable” administration governing this country after the past year of shame?

  16. JoAnn,

    “Marv; who gave the orders? And why?”

    Like I’ve discussed before. We’re witnessing a WHITE SUPREMACY TAKEOVER. The orders are given by TELEPATHY, like the Holocaust, no one needs to be told what to do since they are all on the same page. It’s the same strategy that was used by the Republican Party in 2004 and 2012. They were successful in 2004 and would have been in 2012 if not for hurricane Sandy which spoiled their plans.

    I don’t believe anything can stop the POLITICAL TSUNAMI now. It’s driven by many, many years of sub-surface anti-Semitism; once it is out in the open like it is now, it can’t be stopped until it runs its course as was witnessed in the extreme in Nazi Germany; a catastrophe for the Jews, but also a disaster for ALL Germans.

  17. One can argue that Don the con’s whole purpose over the last two years has been to rebrand sleaze by lowering the American brand to his level. If so he’s been successful. We will never fully recover from what his mere candidacy has said about us.

    We have no standards now. Anything goes.

    I thought that the Republican actions to deny President Obama’s legitimacy over his term rebranded us as a third world country but they have become ordinary now and expected.

    Now Donald Trump has lowered them substantially and more and political hacks like Comey has revealed himself to be will spring up all over the place.

    Some would say that what we had before was “political correctness” and pretension and that politics has always been dirty but out of sight.

    Perhaps it was thin veneer but still a source of pride. We believed that it was true of us collectively even if as individuals we were more tarnished.

    I think of how I learned to view America as I was growing up compared to what we’ve shown adolescents growing up now we are.

    How does a parent even start to explain “pussy grabbing” by a Presidential pretender to a pre-teen boy or girl?

    Our future is forever diminished.

  18. Pete,

    We’re all trapped in something akin to a “falling elevator.” Now, all we can do is to attempt every action which could possibly prevent it from crashing through the bottom floor.

  19. Marv, I like the “falling elevator” analogy.

    Every couple of months we whiz by another floor on our race to the bottom.

    Comey throwing the FBI under the bus was merely the most recent one.

  20. I’m not sure why Comey gets all the heat. Although clearly unhappy, he gave Hillary a pass the first time, which many folks thought was the political action. If he kept silent the second time THAT would be the Hatch Act or political violation. And, the AG (his boss) carefully refused to make any decision, perhaps because she, or HER boss, did not want to step up to the plate and make a political decision. He also could have emphasized that Hillary’s personal assistant, from the middle east, was using an insecure computer that had presumably top secret information co mingled with acts of a sexual predator against a minor child. Remember, the 2005 off the record conversation with billy bush was private, 10 years ago, and relatively innocuous. Trump is getting hammered by current standards. The Weiner dog is performing in 2016, with highly explicit activities again a minor child, and of course using the HLC private security system server, as it exists. Putting everything into vague terms (FBI) was trying to be very neutral and non political, IMHO. What if he emphasized the predator porn against a minor child, stressing that was an additive to the original info. If people wanted to bitch the action to take would be to order the boss, Lynch, to step up to the plate and accept responsibility. We expect Trump to accept 2016 standards, let Hillary (again) accept responsibility for yet another stunt on the ragged edge of legal or non provable behavior.

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