Did FBI Director James Comey Violate the Hatch Act?

Senator Harry Reid (D-NV) sent a letter to FBI Director James Comey in which he told him he may have violated the Hatch Act by revealing his agency’s investigation days before the election of additional emails related to Hillary Clinton’s private email server.

Senator Harry Reid (D-NV) is not very happy with FBI Director James Comey. In a letter sent to Comey over the weekend, the Senator told Comey that he may have violated the Hatch Act by revealing that his office was using their official authority to influence an election,” wrote Reid. “Through your partisan actions, you may have broken the law.”

Reid went on to say in the letter that the FBI has information potentially damaging to Donald Trump, yet it was never released. However, the information that Comey did release on Hillary Clinton is also potentially damaging to her campaign and was done so just before the election. For this reason, Reid said he thinks Comey is trying to sway the election and that is a potential violation of the Hatch Act which bars certain political activities of federal employees.

“The clear double-standard established by your actions strongly suggests that your highly selective approach to publicizing information, along with your timing, was intended for the success or failure of a partisan candidate or political group,” wrote Reid.

The Senator then went on to say that he regrets his past support of Comey. Reid noted in the letter that he worked to get Comey confirmed, something that he now views as a mistake.

Did Comey violate the Hatch Act with his actions? According to an analysis of the law by CNN, it boils down to intent.

“The Hatch Act does not focus on the effect of the employee’s conduct, but the intent,” said the CNN analysis. “To that end, if Comey did not intend to interfere with or affect the upcoming election through his letter to Congress, then he did not violate the letter of the Hatch Act.”

Obviously it is hard to know with any certainty what Comey’s intent was.

However, the article then went on to say that even if Comey did not technically violate the Hatch Act, his actions may have violated the spirit of the law. According to the CNN article, “The animating purpose of the law is to minimize the ability of individual government employees to use their office in a manner that influences the electoral process.”

The article also noted that because the Hatch Act is not a criminal statute, people who violate it do not end up in jail, but could lose their jobs. It is enforced by the Office of Special Counsel which will pursue a settlement with an employee who violates the law or prosecute the case before the Merit Systems Protection Board.

Did Comey break the law? You can offer your analysis in the comments below.

A copy of Harry Reid’s letter is included here.

2016-10-30 Harry Reid Letter to James Comey

About the Author

Ian Smith is one of the co-founders of FedSmith.com. He has over 20 years of combined experience in media and government services, having worked at two government contracting firms and an online news and web development company prior to his current role at FedSmith.