Did Comey’s October 28 Letter Violate The Rules Of Professional Conduct For Lawyers?
October 31, 2016

“Gimme a ticket for an aeroplane
Ain't got time to take a fast train
Lonely days are gone, I'm a-goin' home
My baby, just-a wrote me a letter”

The Box Tops

If you spent the last four days hiding under your bed to get a break from our hilarious and terrifying election season, well, boy-howdy, you came out too soon. Things are again in an uproar.

Wait, no, sorry. Still in an uproar.

The latest gapers’ delay impeding traffic toward Election Day results from a head-on collision between FBI Director David Comey and the presidential campaign.

On Friday, Comey announced the discovery of a cache of emails that might be “pertinent” - Comey’s word - to the FBI’s investigation of Hillary Rodham Clinton’s email practices while Secretary of State. Comey announced this discovery in a letter to eight Congressional Committee Chairmen and the ranking Democratic members of these same committees. The emails purportedly were found on a laptop purportedly shared by former Congressman Anthony Weiner and his estranged spouse Huma Abedin.

Note: the last paragraph has “purportedly” in it twice, both times italicized. So far, none of the information concerning the actual whereabouts or contents of the emails has been officially and publicly shared with Congress, the media, the public, or the campaigns of Clinton and Trump.

Regardless, an immeasurable amount of information about the emails apparently has been leaked to all of the above, apparently from sources in the FBI, or other parts of the Department of Justice, or other parts of the federal government. Next, we will probably see selective leaks of specific emails, designed to help or hurt Ms. Clinton.

Sunlight might be the best disinfectant, per Justice Brandeis, but it seems we disinfect our government these days via its sponge-like porosity.

These newly discovered emails might or might not duplicate emails previously disclosed to the FBI. They might or might not be correspondence to and/or from Hillary Rodham Clinton. They might or might not have classified information in them. Creation, transmission, and/or distribution of the emails might or might not be violations of federal law.

Nobody - including the FBI - knows which “...might or might not...” above is true, if any is. As Comey stated in his letter to the Republican Congressional chairs, "Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony."

After the emails have been examined and measured against federal law, it’s possible that we will know whether federal law was violated by anyone and, if so, how. It’s also possible that we won’t ever know whether federal law was violated in the creation, storage, and distribution of these emails. Prosecutors might not find a violation, or they might, but, for one reason or another, they might decide not to prosecute.

What we do know for certain is that a lot of people are outraged that Comey corresponded with Congress. Not surprisingly, a lot of other people are gleeful about it.

Outraged people include the Clinton campaign, Congressional Democrats, and a number of current and former government officials, including a number of current and former officials at the Department of Justice.

Interestingly, the outraged include Richard Painter, a former chief of the White House Office of Ethics during the George W. Bush administration. Mr. Painter just filed a complaint against Director Comey with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics, on the ground that federal law prohibits federal employees like Comey from engaging in political activity or interfering in political activity.

More about Mr. Painter later on…

Meanwhile, at the “gleeful” end of the spectrum, we have the Trump campaign, Congressional Republicans, and other Republicans, but not all of them, because a fair number of the last group are in the “outraged” category, like Mr. Painter.

Does 'Why' Matter?

There’s been non-stop hot pundit-on-pundit action about why Comey did this now, starting with - and often dispensing with - his letter to Congress. Generally, the speculation is that Comey wrote to Congress to:

  • insure the Congressional and public record reflected the current state of the email investigation,
  • publicize the discovery in a controlled fashion ahead of leaks that might misrepresent its importance or insignificance,
  • help the Trump campaign and/or hurt the Clinton campaign,
  • help the Clinton campaign and/or hurt the Trump campaign,
  • protect Comey and/or the FBI from retaliation from Congressional Republicans, who control the FBI’s budget and might continue to control it after the election,
  • protect Comey himself from Republican-led Congressional investigations after the election if he’d sat on this until after the election, as he apparently was urged to do by Attorney General Loretta Lynch and other Justice officials,
  • some of the above,
  • none of the above,
  • other, and
  • “All of them, Katie.”

Probably we won’t ever know for certain why Comey did this now, because we perpetually suffer competing narratives about Why Political Things Happen.

This is how the political multiverse works, people. Deal with it.

Even if Comey publishes his memoirs one day, even if his memoirs claim to “finally and conclusively” explain why he did this now, we know he will write with the benefit of hindsight and the burden of self-justification. We can also expect at least one other official at the FBI involved in publication of The Letter to then publish a competing, diametrically contrary explanation.

About Mr. Painter's Complaint

Time to return to Mr. Painter’s newly-filed ethics complaint against Mr. Comey.

The American Bar Association has developed model Rules of Professional Conduct for lawyers. The states - which admit lawyers, regulate their conduct, and sanction them for misconduct - have adopted the Model Rules in modified and unmodified forms, as their own mandatory codes of conduct.

At times, states adopt one or more rules verbatim. Other times, states modify the Model Rules. Like every other regulatory issue, there is a tug-of-war among stakeholders about how the regulators should control the conduct of the regulated (lawyers) and, in turn, how lawyers may then behave toward their clients.

There are a couple of relevant Model Rules worth noting here. First, there is Model Rule 8.4, which is headlined “Maintaining The Integrity Of The Profession.”

Rule 8.4 concerns itself with “Misconduct.” Here’s a pertinent snippet:

It is professional misconduct for a lawyer to: ...(d) engage in conduct that is prejudicial to the administration of justice…”

The Model Rule does not specify what kind of conduct is “prejudicial to the administration of justice…” but Comment 7 hints where this can occur: “Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers...”

It’s safe to say, therefore, that the Model Rules hold public lawyers like Director Comey to higher standards than their peers in private practice concerning the administration of justice.

That more stringent duty can be fleshed out by looking at Model Rule 3.8(f), which is headlined “Special Responsibilities Of A Prosecutor.”

“The prosecutor in a criminal case shall:

...(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

I have to be careful here. Ms. Clinton has been repeatedly accused of wrongdoing with respect to her emails, but she’s never arrived at the legal status of “accused”: she’s never been charged with an offense under criminal statutes relating to her email. So she has never been an “accused” as Model Rule 3.8 apparently uses that term.

That said, back in July, Comey held a press conference in which he said, “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

An argument can be made for Mr. Comey that he did not violate the letter of this Model Rule by criticizing Clinton’s handling of her email without charging her with a crime. She was not an “accused” as that term is commonly defined in law.

On the other hand - and I think this is the better hand - he certainly violated the spirit of Model Rule 3.8, which is fleshed out in the comment to the Rule 3.8 (f):

Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

Let’s highlight and bold a portion of that comment: “...a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose…"

Okay, sure, Comey’s not the prosecutor here, but what “legitimate law enforcement purpose” did his criticism of her “extremely careless” conduct serve?

He decided not to recommend charges against her. I suppose it can be argued that he criticized her carelessness to deter other public officials from handling email as Clinton did. But, if that conduct would not be a chargeable crime if committed by another person, if it would just be “extreme carelessness,” than there’s no apparent legitimate law-enforcement purpose in Comey’s comment.

Perhaps Mr. Painter, in filing his complaint against Director Comey, has a creditable point. Mr. Comey might have violated his ethical duties in his statements concerning Ms. Clinton.
In addition to learning the content of those emails, we will learn the fate of Mr. Painter’s complaint. Stay tuned...

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