Has FBI Director Comey Created A 'Public Interest' Exception To Its Ban On Investigation Disclosures?

from the would-be-nice,-but-won't-happen dept

We noted this towards the end of our post on how the FBI is leaking like a sieve in revealing details about the investigation into Hillary Clinton's emails -- that Comey seemed to be handing reporters a perfect comeback to the bullshit response the FBI normally gives that it "won't comment on ongoing investigations." As the Intercept is now noting, Comey seems to be saying that there's a "public interest" exception to that rule, though as of right now only he gets to decide what's in the public interest:
Comey’s actions have raised lasting questions about when the public interest outweighs the current policy, and whether there should be a “public interest” exception to the Justice Department’s secrecy rules.

In his July announcement, Comey said that “given the importance of the matter, I think unusual transparency is in order.” Part of his goal was clearly to reassert the FBI’s independence from political pressure. “No outside influence of any kind was brought to bear,” he said.

If there were a public interest exception, there are many other high-profile investigations that the Justice Department could be encouraged to discuss.
Of course, the partisan folks out there have made this whole thing hilarious. Back in July, the partisan supporters of Clinton argued that such a public interest exception made perfect sense -- while the Trump supporters argued that this was an abomination and that Comey was "playing politics" in revealing information that he shouldn't have been revealing. In the last week, however, it's the Trump supporters who are suddenly big fans of the "public interest" exception to revealing details of an investigation, while the Clinton supporters are up in arms about "playing politics." Anyone who argued that one was good and the other is bad is a hypocrite. The truth is that Comey was abusing his power both times as he's done for years and years.

From a reporting standpoint, of course, journalists love that Comey is willing to reveal details (and others are willing to leak more after the fact). It provides lots of news to report on -- and we, like others, are happy to report on that information. But from a general public policy standpoint, it's a serious disaster. As Alex Emmons at the Intercept points out, there's a good reason why we don't want the FBI to comment about ongoing investigations:
There’s a reason that the Justice Department has nondisclosure rules about ongoing or closed investigations. Lots of things emerge in investigations that are not true, or do not amount to crimes. Disclosing those things can ruin reputations. So it is typically left to prosecutors to decide what accusations to make public, in the form of an indictment.
A public interest exception sounds like a good thing, but the reality is that it'll be used selectively by law enforcement, and that just creates a huge mess (as seen from the partisan outcry during both moves by Comey).

Filed Under: disclosures, fbi, investigations, james comey, leaks, public interest, public interest exception

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  1. identicon
    AnonCow, 2 Nov 2016 @ 3:01pm

    Even more important than the issue of the Comey letter is how the FBI was able to get a search warrant for an unrelated and closed investigation completely unrelated to the reason the FBI had the device(s) in the first place.

    It would be like the FBI searching your house because your roommate was a drug dealer and then getting a warrant to search your work office for proof of insurance fraud even though you are not under investigation or suspicion of the reason for the search of the house nor insurance fraud.

    reply to this | link to this | view in thread ]

  2. icon
    Uriel-238 (profile), 2 Nov 2016 @ 3:02pm

    Public Interest = When we want to stir the pot

    Somehow, I suspect that when there are genuine public interests (such as security vulnerabilities in common OSes and software, which are very much in the public interest to disclose and secure) that they won't be so regarded and revealed.

    So yeah, it will be used selectively by law enforcement to stir shit.

    Perhaps this informs us that there should be actual advocates of public interest that have the ability to veto law enforcement action (including disclosure or non-disclosure) when not doing those things would actually be in the interests of the public.

    It might be a step back towards, you know, law enforcement by consent.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 2 Nov 2016 @ 3:07pm

    I am interested in him resigning

    It appears that J. Comey has JEH as a mother figure.

    We don't really need another dress wearing FBI director. J. Edgar Hoover, we never missed ya. Indeed, we wished we had missed you completely.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 2 Nov 2016 @ 3:10pm

    Public Interest? It looks like you misspelled Comey

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 2 Nov 2016 @ 3:22pm

    There is an apparent internal war at fbi. Clintonites vs the rest.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 2 Nov 2016 @ 3:33pm

    Comey needed to spike the coverup ahead of time

    After Her Majesty is coronated next week, the shredders and the Bleachbit will be operating 24/7.

    Comey wanted to provide a "scandal canary" to make sure that the presstitutes wouldn't so quickly "forget".

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 2 Nov 2016 @ 4:17pm

    Fuck politics.
    How's that FBI investigation into Prenda Law coming along? We have a "public interest" in an investsigation disclosure on that.

    reply to this | link to this | view in thread ]

  8. identicon
    Virtually Nonymous, 2 Nov 2016 @ 5:42pm

    Comey did not want to reopen the investigation and if it was up to him he wouldn't have done it - but his hand was forced.

    The reason he re-opened the investigation is that he had no other choice. The FBI was in open revolt ( http://thehill.com/blogs/blog-briefing-room/news/303546-scarborough-fbi-director-had-mutiny-brewing ), and if Comey didn't do SOMETHING then the agents themselves would. The actual rank and file FBI agents have such a low opinion of Comey that they sat on the emails from Weiner's laptop for months before actually taking them to him.

    Anybody who says that Comey shouldn't have announced or spoken about the re-opening of the investigation should be incredibly careful about what they wish for - if the investigation wasn't re-opened, then Wikileaks would be dumping the Weinerfiles right now, and those would probably be even worse than the Podesta emails.

    reply to this | link to this | view in thread ]

  9. identicon
    Whatever, 2 Nov 2016 @ 7:38pm

    Is a leak involved? Then I blame Snowden. Only Snowden could be at fault here, not Comey.

    reply to this | link to this | view in thread ]

  10. identicon
    briny, 2 Nov 2016 @ 9:14pm

    Oh, like having some oh, so conveniently arranged reporters with video cameras lined up for the "Perp-Walk." At that level it's all political with eyes on the prize whether it's the DoJ, FBI or higher.

    reply to this | link to this | view in thread ]

  11. identicon
    Anon, 2 Nov 2016 @ 10:19pm


    It's obvious the problem -as mentioned in the article, the decision to reveal arbitrary and the information released meaningless and subject to innuendo and misinterpretation. The problem is that any police investigation is victim of the mentality that assumes "if the police are investigating, you must be guilty".

    So to reveal a small amount of information and leave it hanging -and even say "we will say no more about this" is ludicrous. It is precisely why we have a "cone of silence" rule about disclosing investigations. Comey seems to be replacing it with Heisenberg's principle - we can know one thing or the other about an investigation, but not all things.

    reply to this | link to this | view in thread ]

  12. icon
    Groaker (profile), 3 Nov 2016 @ 5:40am

    This is nothing new. Among other such instances, one group stands out. The identification of Anthrax terrorist "persons of interest." Who had their lives ruined, and one reputedly drive to "suicide." Though no scientist would use acetaminophen as a means of doing themselves in. There are any number of ways to do oneself in that are quick and either painless, or relatively painless. Acetaminophen poisoning is a drawn out, and terribly painful way to die.

    Perhaps the FBI is hoping to achieve the same goal with Ms Clinton as they have accomplished in the past. Provide some basis for believing that a person is despondent, and drive them to suicide, or what looks like suicide.

    reply to this | link to this | view in thread ]

  13. identicon
    Jim, 3 Nov 2016 @ 5:54am


    No wonder, agents with an agenda? Who would have guessed? Only trouble? Sounds as if some have a political agenda. Brown shirts. Sounds as if they are no longer interested in truth and justice, and the American way. 1920's all over again.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 3 Nov 2016 @ 6:36am


    And the war would have been kept quiet and behind closed doors where it belonged, until Comey let loose the floodgates on Friday with his inappropriate letter so close to the election.

    There's a reason for the Hatch rule about not announcing stuff like this about investigations within 60 days of an election. It's not fair for the person to get charged with a crime, or accused of a crime by the government, only to be found not guilty months or years later long after they lost the election because of the baseless accusations.

    Comey has jeopardized the FBI's reputation as a non-partisan institution with these leaks so close to an election.

    reply to this | link to this | view in thread ]

  15. identicon
    Tin-Foil-Hat, 3 Nov 2016 @ 7:57am


    Comey is delusional and a compulsive liar. If it turns out that even the weiner case was made up I won't be surprised.

    reply to this | link to this | view in thread ]

  16. icon
    Groaker (profile), 3 Nov 2016 @ 10:39am

    Re: Re:

    The FBI has a reputation allright. One for those who are not paying attention, and another for those who have. For those who watch what the FBI has been up to for at least the last 50 years, that reputation is no better than Joe Arpaio's.

    reply to this | link to this | view in thread ]

  17. identicon
    Thad, 3 Nov 2016 @ 11:47am

    Re: Re: Re:

    I live in Maricopa County, and I can tell you right now that Arpaio is very much somebody who also has a reputation for those who are not paying attention and another for those who are.

    reply to this | link to this | view in thread ]

  18. identicon
    Thad, 3 Nov 2016 @ 12:04pm


    It's a fair argument, but it's also conjecture, and I don't consider Scarborough to be the most reliable source. As far as FBI agents giving the docs to Wikileaks, that's not mentioned in your article at all and seems to be a rhetorical fluorish on your part and not a reasonable expectation of anything that would have actually happened.

    I agree that Comey was boxed in in this situation -- but I believe he boxed himself in with his unprofessional and unprecedented press conference back in July.

    I also agree that if Comey hadn't sent the letter, someone else in the FBI probably would have leaked the information.

    But here's the thing: the information they have is nothing. The only reason anyone's talking about it at all is because it's got the FBI director's name on it.

    If an anonymous FBI leaker had said "We might have more Clinton e-mails, but we don't know for sure and if we do we don't know what's in them," that would have lit up certain corners of the Internet, sure. But it wouldn't be the media firestorm that "FBI director reopens investigation" is. (He didn't, by the way; the investigation was never closed. The FBI leaves investigations open for a very long time.)

    Per your hypothetical that "Wikileaks would be dumping the Weinerfiles right now, and those would probably be even worse than the Podesta emails" -- well, I've already covered the first part. As for the second part, your suggestion that the files on the Weiner laptop are "probably [...] even worse than the Podesta emails" -- what do you base that on?

    Because I think logic dictates that if (1) there are people within the FBI who were likely to leak the story to discredit Clinton and (2) those e-mails actually discredit Clinton, then (3) they would have been leaked by now, with or without Comey's vague letter to Congress.

    Maybe there is some bombshell in there that nobody's found yet and that's going to blow Clinton wide open in a way that no previous investigation has. Maybe. "Probably" is not the word I'd use.

    What I'd say is probable is that there is nothing in Abedin's e-mails on that laptop that we don't already know. And if there is new information, it is, at best, the same sort of controversial but not explosive revelations we've seen before: the DNC was in the tank for Clinton and unethically influenced the primary campaign; there was too much overlap across Hillary-as-government-official, the Clinton Foundation, and Bill-as-paid-speaker.

    reply to this | link to this | view in thread ]

  19. identicon
    i used to like techdirt before they became paid MS, 3 Nov 2016 @ 3:41pm

    Did Techdirt give up talking about Tech to sell out to MSM?

    I used to read great articles on this page regarding the inside scoop on all things Tech related. Nowadays, every 3rd article is Trump-bashing or Hillary-humping, partisan trash in the most Democratic sense. The premise of this article makes the main story about Comey rather than about Clinton. If you all would take off your blinders and see that Hillary Clinton is throwing her political weight around to illegally block investigations at the FBI, through her cronies in the Justice Dept., then you might actually start to understand why it was so immensely important to get this investigation going. She has broken more laws than freakin' Al Capone and everyone still believes she should be president because here paid media sponsors are Farenheit 451-ing them right into the fire. If you don't know what that means then I suggest you read the book before you cast your ballot. Her illegal activity must be brought to light so that we don't end up electing a Fraud to run our country. If she is willing to kill(or have killed) 23 people to keep her political aspirations alive just imagine what dire shit she is willing to do to on the world stage.
    Techdirt please go back to writing about cool Tech topics rather than the political crap because you are appear to be as bought as all the other MSM.
    AND People ask yourself this. If you (like Huma Abedin) felt it necessary to email yourself copies of information sent to you by Hillary and file it under "LIFE INSURANCE" just why the hell would you need to do that, if she was such a great person? The answer is, the folder is full of information that can be used to blackmail HRC or at least keep yourself alive if trouble starts brewing. She is an evil, terrible person and is one of the biggest criminals this country has every seen.

    reply to this | link to this | view in thread ]

  20. identicon
    Thad, 3 Nov 2016 @ 4:34pm

    Re: Did Techdirt give up talking about Tech to sell out to MSM?

    Who had "secret murders" on their Clinton Conspiracy Bingo card?

    reply to this | link to this | view in thread ]

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