Democrats are criticizing the FBI over its refusal to discuss potential contacts between Russian officials and associates of President Donald Trump, saying the bureau's tight-lipped approach and its public disclosures about Hillary Clinton's emails during the fractious election campaign reflect a double standard.
While distinctions between the two matters could help explain why they're being treated differently, critics of the FBI's approach say Director James Comey set a precedent with his unusually public accounting of the Clinton email case that roiled the final stretch of the presidential race. Congressional Democrats and former Clinton aides who seethed at the FBI's actions last year say they're upset that a law enforcement organization that so publicly discussed one probe didn't even hint at the existence of another.
Comey's approach of not discussing any of the FBI's work related to Trump associates and Russia — which has included an interview with former national security adviser Michael Flynn — hews closely to the bureau's "by-the-book" protocol, but it deviates significantly from how the Clinton case was handled, said Clinton campaign spokesman Brian Fallon, a former Justice Department press official.
"Once he has crossed the threshold of holding a press conference to publicly editorialize on her email arrangement, it then became untenable for him to retreat back to the norms and protocols that normally apply with respect to Trump," Fallon said.
Comey acknowledged the extraordinary national interest in an election-year investigation into a presidential candidate when he took the unusual step in July of publicly announcing the bureau's decision to not recommend charges for Clinton and of discussing evidence his agents had reviewed and the legal standard they were applying. His characterization of Clinton and her aides as "extremely careless" was condemned by Democrats as unnecessary editorializing.
That news conference was followed by hours of testimony before Congress and then, just 11 days before the November 8 election, a vaguely worded letter to Congress advising that new emails potentially connected to the case had been discovered and would need to be reviewed.
A follow-up letter nine days later said the email review had done nothing to change the FBI's original conclusion, further angering Democrats about why a public disclosure was made before the FBI had even obtained a warrant to search the emails.
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Now, amid reports of the FBI's ongoing Russia inquiries, tensions have risen over the paucity of public information.
Tempers flared during a contentious closed-door meeting on Capitol Hill last month, when House Democrats angry over the public disclosures in the Clinton case confronted Comey over his silence. He maintained a similar stance earlier that week during an appearance before the Senate Intelligence Committee, when he said, "I would never comment on investigations — whether we have one or not — in an open forum like this so I can't answer one way or the other."
Rep. Elijah Cummings of Maryland, the top Democrat on the House Oversight and Government Reform Committee, said he'd been stymied by the FBI in his requests for information on any inquiries into Russian meddling in the presidential election or intercepted communications with Russian officials. Yet when it came to the Clinton case, he said, "it seemed like it was almost a blow-by-blow" account from the bureau.
"It's placed Comey under significant scrutiny," Cummings said, "and I think people will be looking very carefully at how he handles this entire situation."
The FBI declined to comment.
Nonetheless, there are distinctions in the two cases that prevent them from being perfectly analogous.
A counterintelligence investigation that examines contacts with foreign officials is, by design, typically out of public view, and often information that is accumulated for intelligence purposes is never made public.
The intelligence community inspector general referred the Clinton email matter to the Justice Department in a letter that was released to members of Congress and subsequently made public. Law enforcement officials then took certain overt steps, such as taking from a law office a thumb drive containing Clinton's emails, that made it virtually impossible to deny that an investigation was underway.
Comey himself was mostly tight-lipped as his agents reviewed whether Clinton had unlawfully mishandled classified information, except to say that the FBI was committing resources toward the matter and that he was receiving regular updates on it.
His first extensive comments came at a July press conference at FBI headquarters, when he acknowledged the unusual nature of the public statement he was about to make but said "the American people deserve those details in a case of intense public interest."
People close to him have said he felt compelled to alert Congress about the discovery of additional emails — found on a laptop belonging to Anthony Weiner, the now estranged husband of top Clinton aide Huma Abedin — after having previously testified under oath that he would update members if there was a need to revisit the investigation. There were also concerns that the FBI's work could leak out.