The coward

James B. Comey, the F.B.I. director, faced a dilemma on Thursday when deputies briefed him about the discovery of a trove of emails that might be linked to the inquiry into Hillary Clinton’s private email server that was closed months ago. 

Mr. Comey could immediately inform Congress about the emails, which were found in an investigation into former Representative Anthony D. Weiner. That unusual step, months after Mr. Comey had cleared Mrs. Clinton of any criminal wrongdoing in the email case, would risk accusations that he was unfairly harming her presidential campaign less than two weeks before the election. 

Or he could delay any announcement and examine the new emails more closely, risking criticism that he had suppressed important new information if it came out after the election, despite his pledges of “transparency” in the investigation. 

Mr. Comey, a Republican appointed by President Obama three years ago, decided that he could live with criticism of his judgment, aides said. So on Friday morning, the F.B.I.’s congressional liaison emailed a letter from the director to the chairmen and ranking members of eight congressional committees — virtually ensuring that it would be quickly publicized by eager Republicans...

Across Pennsylvania Avenue from the F.B.I., Justice Department officials were said to be deeply upset about Mr. Comey’s decision to go to Congress with the new information before it had been adequately investigated. 

That decision, said several officials who spoke on the condition of anonymity, appeared to contradict longstanding Justice Department guidelines discouraging any actions close to an election that could influence the outcome. 

One official complained that no one at the F.B.I. or the Justice Department is even certain yet whether any of the emails included national security material or was relevant to the investigation into whether Mrs. Clinton had mishandled classified material in her use of a private email server.

There is no indication the emails in question were withheld by Clinton during the investigation, the law enforcement official told Newsweek, nor does the discovery suggest she did anything illegal. Also, none of the emails were to or from Clinton, the official said. 

The U.S. Attorneys’ manual emphasizes the importance of “limited confidentiality” in “ongoing operations and investigations” to safeguard “the rights of victims and litigants as well as the protection of the life and safety of other parties and witnesses.”

Julie Werner-Simon, a former federal prosecutor who retired from DOJ in August 2015 after 29 years of service, argues that Comey’s decision to make public an incremental development in the investigation with little clear significance is a breach of the protocol outlined in the manual.

“It is shocking and disheartening that someone I admired would do this,” she said. “If I did what he did, I would be censured.”

“My view is that there should be an investigation” into Comey’s behavior, she added. “Under the rules that he violated, that investigation should be secret. That’s the point.”

There are exceptions to this protocol under unusual circumstances, but Comey would have had to consult with a senior official at DOJ before doing so, according to Werner-Simon, who instructed federal prosecutors about these protocols as senior litigation counsel at DOJ, the last position she held there.

“Who gave him permission? If he is going to use unusual circumstances under the U.S. Attorneys’ Manual, who did he discuss it with?” Werner-Simon said.

Nancy Gertner, a retired federal judge appointed by President Bill Clinton who now lectures at Harvard Law School, had a similarly stinging indictment of Comey’s actions.

“I cannot think of any reason except Comey’s own personal interests to make public the possibility that there may be emails whose content he does not know that may be relevant to the investigation,” Gertner said.

“To release that kind of information is outrageous,” she added. “The FBI typically does not release information about an ongoing investigation, information that could have an impact on an upcoming election ― and he does not have the foggiest idea what is in these emails.”

The professional considerations that may have motivated Comey are obvious. Comey, a Republican, faced considerable criticism and scrutiny from congressional Republicans for declining to press charges against Clinton for her handling of classified emails on a private email server.

Comey appeared to recognize the unusual nature of his decision to release the information about the newly unearthed emails on Friday in a letter to his employees explaining the choice.

“Of course, we don’t ordinarily tell Congress about ongoing investigations, but here I feel an obligation to do so given that I testified repeatedly in recent months that our investigation was completed,” Comey wrote. “I also think it would be misleading to the American people were we not to supplement the record.”

Indeed, some former federal prosecutors believe that based on his previous commitment, Comey was required to follow up with Congress.

Solomon Wisenberg, a former federal prosecutor who served as deputy independent counsel in the investigation of the Monica Lewinsky scandal, argues that Comey made a mistake in July when, in an announcement that the DOJ was declining to press charges, he criticized Clinton’s behavior and promised to report to Congress on additional findings.

“His duty was to shut up and he didn’t. If you want to talk about violating protocol, he has provided a roadmap,” Wisenberg said.

Having made that error, however, Comey was likely obligated to inform Congress about the discovery of the new emails, according to Wisenberg, who is now a white-collar criminal defense attorney.

“He told them if things change, he would report to them. Given that set of facts, he was duty-bound to do it,” Wisenberg said.

John Bellinger, a former legal adviser to the State Department and National Security Council in the George W. Bush administration and one of many Republican former federal prosecutors to sign a letter calling for nominee Donald Trump to be “rejected” at the polls, offered a similar assessment.

“I don’t think Comey had any choice but to disclose the fact now so that he is not accused later of withholding material information from Congress,” he said.

But, Bellinger also argued, “Comey now owes it to the American people to announce his assessment before the election, even if he normally would have taken a longer period to run down every loose end.”

Werner-Simon maintains, however, that if Comey felt obligated to provide Congress with piecemeal updates about the investigation, he should have ben less equivocal about the implications of his findings.

Comey, she noted, wrote that the emails “appear to be pertinent to the investigation,” and other phrasing that lacks the full-throated conviction that would justify making an exception to protocol.

“If there is some kind of rule of completeness argument, then be more forthcoming in your controversial disclosure,” she said. “Do not use words like ‘appears’ or ‘could be’ or ‘maybe’ or other conditional speech. If you’re going to do it, then at least do it in a standup complete way.”