Democrats’ frantic search for the real killer of Hilary Clinton’s expected victory -- anything other than a bad record, a flawed candidate, and an unhappy public -- seems to have settled on Russian meddling.  But, the politically charged and legally delicate labor of James Comey probably was more significant.  Salon Magazine recently declared Comey’s impact on the election the “biggest story of 2016.” Perhaps we’ve misunderstood and misjudged a shrewd, brave, and consequential strategy by an FBI Director in a tough spot. 

Comey was criticized harshly by Republicans and Democrats alike for his probe into Hillary Clinton’s emails and handling classified material.  His once golden reputation is smashed likely beyond redemption.  Looking back, it is difficult to make sense of Comey’s twisting path.  It’s widely believed the administration, through the Justice Department, let Comey know there would be no charges filed, no prosecution of the Democrat nominee and president’s strongly preferred successor, Hillary Clinton. 

DOJ  hobbled the investigation with arbitrary shackles that defied sense and strategy, treated Clinton with unprecedented deference, and spread immunity to many of her top political and technology aides and vendors.  This was an investigation that never had a chance -- confirming to conservatives their belief the Department is politicized and the administration is corrupt. 

Some commentators believe the honorable course would have been for Comey to resign.  Here’s where Monday morning quarterbacking gets interesting: Comey pressed forward with a lengthy investigation.  The sequence of tumultuous events reads like a heated political thriller. 

As an announcement appeared imminent, Attorney General Loretta Lynch was seen in flagrante delicto with Bill Clinton on a Phoenix tarmac.  Responding to the furor, Lynch ducked and cowered behind Comey, taking the unprecedented step of announcing the decision how to proceed was effectively his.  Cops telling prosecutors whether or not to file a case is not how things are done. 

On July 5^th, Comey conducted his infamous press conference.  He plainly and methodically laid out a case of shabby, unlawful conduct by Clinton, who sent and received classified information on her unsecure server, which was likely hacked by foreign governments.  Then, Comey spun around, declaring no reasonable prosecutor would take the case because there was no evidence Clinton intended to act unlawfully -- a requirement that does not exist in the relevant statute.  It was a stunning performance that outraged Republicans and delighted Democrats, earning Comey derision from the right and praise from the left. 

Then, 11 days before the election, Comey sparked another buzz storm, notifying Congress by letter the investigation was reopened because 650,000 relevant emails were discovered on the laptop computer of Anthony Wiener, husband of Clinton confidante Huma Abedin, in an unrelated probe.  The political whirlwind was instant.  Republicans praised Comey’s diligence.  Democrats condemned his meddling and accused him of violating federal law by trying to influence the election. 

The winds soon reversed again.  On Sunday, November 6, two days before the election, Comey wrote to Congress stating nothing in the new emails changed his initial decision to recommend against prosecution.  Snap.  He was again Republicans’ most vilified stooge and Democrats’ favorite emissary of justice. 

Then the earthquake of November 8, 2016 hit.  Donald Trump won a seemingly impossible victory with 306 electoral votes, crushing Hillary Clinton in the state tally and Electoral College.  The Clinton camp argues Comey’s actions, particularly his letter to Congress, played a decisive role.  In a post-election conference call with major backers, Clinton and aides said the announcement had “blocked out the sun,” kept her from getting her message out, slowed her momentum, and energized her opponents.  Even Comey’s later notice of exoneration hurt, they say, because it was too little, too late to boost Clinton and instead angered and energized Republicans. 

What was Comey thinking?  His behavior throughout is hard to decipher.  For an accomplished man in a very tough spot, one who cares about his hard-earned reputation and his future, there are safer ways Comey could have played mostly the same hand he eventually did.  Of course, he could have resigned rather than submit to DOJ restrictions.  But that was a futile gesture.  The FBI’s number two man, Andrew McCabe, was tainted by Clinton graft.  His wife received $500,000 for a Virginia state senate campaign from Clinton moneyman Terry McAuliffe.  McCabe would certainly salute, not fight.  If Comey were to have fallen on his sword, the same political interference and corruption would have prevailed. 

Events make it reasonable to speculate that Comey chose a high stakes, personally damaging strategy of comply-but-defy.  If he meant only to capitulate, he could have kept his head down.  He could have issued a bland statement citing a lack of intent.  But he did more.  What profit is there for an official publicly to present an elaborate and damning case that convicts Clinton in lay vocabulary, only to then acquit her in legalese? The explanation displeased the administration and certainly Clinton.  The decision not to indict enraged Republicans. 

Comey knew he was walking into an inferno.  But he willingly fired it up and walked right in.  What motive would he have, other than to expose as much of the truth as possible, to allow voters to make an informed judgment?

Similarly, upon discovery of the emails on Weiner’s computer, Comey was compelled to continue the investigation.  Reportedly, AG Lynch instructed Comey not to inform Congress.  But he felt duty bound to update Congress on an investigation he had declared closed.  Still, he could have been quieter, perhaps giving a private briefing to leadership, without creating a document with the FBI seal and his signature. 

Again, Comey lifted heavier than he had to, with explosive effect on the political discussion.  It is troubling to think of a law enforcement professional calculating in this way.  Questions of ethics and propriety abound.  But it likely was existentially troubling to Comey to think of corrupt political influence blocking what should be an impartial legal investigation, obstructing justice, and ushering in a new president, and attributing the decision to him for good measure. 
I wonder if James Comey willingly laid down his reputation in order to both obey and defy the president, while doing his best to uphold his oath to protect the Constitution of the United States.  Perhaps at great cost, he made a Hail Mary pass of a fraught issue to the electorate so voters could take it from there.

Shawn Mitchell is an attorney and former state senator in Colorado