As a rule, lawmen don’t like to say much more than they have to, and there is not a person who has met FBI Director James Comey who would size him up as less than tight-lipped.
Yet there he was last summer, up on Capitol Hill, telling the world under oath about his upbringing while laying out the painful details of how an investigation into Hillary Clinton’s emails had found no evidence of a crime. “I was raised by great parents who taught me you can’t care what other people think about you,” he said, trying to explain his appearance. “In my business, I have to and deeply do–that people have confidence that the system’s not fixed, against black people, for rich people, for powerful people.”
By that measure, Comey has had a rough go in the months that have followed. Donald Trump traveled the country denouncing Comey’s decision not to indict Clinton as a crooked effort at a cover-up. Then on Oct. 28, Comey inserted himself into the election again, by alerting Congress that new emails had been found and that they could be relevant to the Clinton investigation, though he did not yet know whether there was any new evidence of wrongdoing. The action reopened a deep wound in Clinton’s public image, and Democrats reacted with fury. As her advantage in polls began to narrow, the prospect emerged that the words of an FBI director might swing an election.
There is a reason law likes order, and the Justice Department lays out guidelines to protect itself from allegations of political interference by saying as little as necessary about cases that end without charges. Comey knows this well. But his bet even in July was that those rules were not built to withstand the terrible pressures of the moment: a governing city at war with itself, a nation awash in groundless conspiracy theories, and bosses who had compromised their own neutrality.
Attorney General Loretta Lynch made the appalling choice of allowing former President Bill Clinton onto her plane for a personal visit, which forced her to agree to take Comey’s recommendations in the investigation. Even President Obama appeared to prejudge the investigation in his legacy’s favor, saying publicly in 2015 that Hillary Clinton had not “endangered” national security.
Comey’s solution for an extraordinary situation was “extraordinary transparency,” which often works to soothe political and corporate scandal but can hit snags in criminal justice, where secrecy functions to protect the innocent and ensure fairness. Comey’s early transparent pledges created an expectation that he would to keep Congress informed of any future turns in the investigation. That, he says, forced him to alert Congress about the new emails found on a computer used by the husband of one of Clinton’s closest aides, who is under a separate investigation for allegedly sexting with a minor.
So it was that a noble effort turned the FBI on its head and opened a floodgate of leaks and partisan recriminations. In the first days of November, federal officials revealed that the bureau decided to hold off on taking conspicuous steps in two other politically sensitive investigations, one into possible criminal activity overseas by Trump’s former campaign manager and another into the Clinton Foundation. Officials also disclosed that Comey had opposed publicly releasing word that Russia was responsible for the hacks of Clinton campaign emails. He argued that it could influence the election.
It is easy, in retrospect, to see Comey’s decision this summer to testify and speak publicly about a case that went nowhere as the original sin. “Comey put himself in a box he never should have put himself in,” says Don Ayer, a former Deputy Attorney General under George H.W. Bush. “You either prosecute and proceed or you shut up.”
Several Republicans have joined Democrats in denouncing the prospect of a law-enforcement officer swinging an election with necessarily vague intimations. “They’re going to teach this case in law school as what not to do,” said Michael Chertoff, the Secretary of Homeland Security under President George W. Bush, who was joined in his criticism by former House Speaker Newt Gingrich, Iowa Senator Chuck Grassley and Ohio Representative Jim Jordan.
“I support calls for the FBI to release as much as it can before the election so that voters can make an informed decision,” Jordan told TIME. The Justice Department has indicated it may try to do just that, raising the possibility of yet another bombshell in the final week of the campaign.
Comey’s defenders, meanwhile, have argued that those stoking outrage miss the broader stakes for the nation. “There are very few people focused on running a government down the road, and I think he is one of them,” says Daniel Richman, a former federal prosecutor and Comey adviser. “The desire to have absolute credibility with Congress is absolutely paramount to him.”
A familiar, grim refrain will likely be repeated in the coming months: as bad as things seem, they can always get worse. If it leaked after the election that Comey did not inform Congress of new evidence that might have damaged Clinton, his credibility and that of the election results might have been called into doubt. And there is a high likelihood that over the next four years, the next President will be awash in more criminal investigations of the Executive Branch. The political testing of justice in America may have only just begun.
In the span of months, national divisions have torn at the very fabric of the institutions on which the nation’s identity is based: the credibility of a free press, the integrity of a free election process, the ability of political leaders to carry on a debate of ideas. Comey can be counted as one who saw the dangers coming and did what he could to protect the founding principles of the country. Like so many others, he appears for the moment to have failed.
–With reporting by MASSIMO CALABRESI/WASHINGTON
This appears in the November 14, 2016 issue of TIME.
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