Upset about Roe v. Wade? Blame James Comey | Opinion

His reckless actions during the runup to the 2016 election led to Trump’s election and the conservative court

June 30, 2022 6:00 am

The writer argues that James Comey’s gift to America was the presidency of Donald Trump, and all it wrought. Photo by John Partipilo/Tennessee Lookout.

If you’re interested in the single individual most responsible for the Supreme Court’s decision to reverse Roe v. Wade, consider the actions of former FBI Director James Comey. 

None of the five justices need be considered, since each of their feelings on Roe were known before being nominated to the court, and all they did was garner a supportive majority of senators. 

There are others who helped put these known commodities on the court, such as then-Senate Majority Leader Mitch McConnell, who blocked a Democratic court nominee and pushed through Republican nominations. Another is Leonard Leo, who spent three decades advocating for anti-abortion judges as head of the Federalist Society. Finally, there is Donald Trump, who appointed three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — of the five justices who declared women don’t have a constitutional right to choose an abortion.

Still, Comey is my choice as the individual most responsible. Nobody else did more in the 2016 election to defeat Hilary Clinton and elect Trump, including Trump himself. Even if you disagree, Comey’s contributions deserve recalling.

Comey had an enviable background as a lawyer and public servant when then-President Barack Obama named him to lead the FBI in 2013. He prosecuted the Gambino crime family, as well as Martha Stewart for insider trading. As Deputy Attorney General under George W. Bush, Comey was one of the few to say CIA waterboarding amounted to torture.  

Despite that record, Comey’s awful misjudgments and violations of Department of Justice policies in the run-up to the 2016 election were monumental. 

Here’s a recap of Comey’s actions.

On July 5 he accused Clinton of being “extremely careless” in her handling of e-mails as secretary of state but recommended no criminal prosecution. Comey’s announcement violated DOJ policy that prosecutors — not the FBI — make decisions on criminal charges, as well as DOJ’s policy of non-interference with elections. Comey rationalized his announcement by pointing to Bill Clinton’s ill-considered visit with Attorney General Loretta Lynch on the tarmac of the Phoenix airport a week before. Nevertheless, this announcement and the related October 28 announcement, which I’ll get into in a bit, led the DOJ’s Inspector General to later criticize Comey for “insubordination”. 

Comey’s accusation of Clinton’s “carelessness” also broke FBI protocol by commenting on non-criminal behavior. It had the effect of helping fuel the ugly Trump rallies “Lock her up” chants, and fed a feeling Clinton could not be trusted with the presidency. 

Days later, the FBI began to look at Russian election meddling with the possible cooperation of the Trump campaign. Consistent with DOJ policy against interference with elections — unlike the Clinton announcements — there was no public notice of the investigation. 

On Oct. 7 Comey refused to sign a statement issued by the heads of National Intelligence and Homeland Security saying Russians were interfering with the election, even though the FBI by this time had evidence of just that. He later told ABC News that DOJ’s policy against election tampering led to his refusal.

Comey most egregiously involved himself in the presidential race Oct. 28, eleven days before Election Day. He said the FBI had reopened the Clinton investigation after finding a laptop owned by Anthony Weiner and his wife, top Clinton aide, Huma Abedin. She had exchanged e-mails with Clinton — not knowing Weiner had also used it to send sexually explicit texts to a 15-year-old girl. Comey later said his announcement, which was in the form of a letter to GOP Congressman Jason Chaffetz, was necessary to “maintain public faith” in the FBI, even though he clearly violated the DOJ’s non-interference with elections policy. 

Two days before the election, Comey announced the FBI was once again closing the Clinton investigation because it found no issues regarding her e-mails on the Weiner-Abedin laptop.

But public opinion research showed the damage was already done. Elections analyst Nate Silver flatly declared the Comey letter cost Clinton the election. Her aggregated polling average lead was nearly 6 points on the day Comey sent the Chaffetz letter. On November 4, after the Clinton story had led the news six out of seven days, her lead had shrunk almost three points. In battleground states such as Michigan and Wisconsin, where Trump’s eventual winning margin was less than 1%, that opinion switch undoubtedly contributed to the election’s outcome.

The Institute for the Study of Citizens and Politics did a post-election review showing the combined Trump gain and Clinton loss during that period made for a four-percentage point boost for Trump. Also, both Trump and Clinton pollsters agreed Comey’s letter shifted the race. Their opinions were reinforced by a 2019 study in the Social Sciences Quarterly showing that “Trump’s probability of winning the election received a substantial boost” from Comey’s letter.

It’s irrelevant now whether Comey intentionally or not tipped the election to Trump. Both friends and critics point to his own self-regard and exaggerated belief in his own integrity. To protect his reputation, he made both his July 5 and Oct. 28 announcements on the Clinton e-mail investigation. In doing so, Comey was heedless of the impact his words would have on the presidential election and the nation’s future. He’s been quoted in various media saying he has no regrets about his actions during the 2016 campaign. 

Instead, today it’s likely the majority of Americans have regrets.

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Ken Peterson
Ken Peterson

Ken Peterson, now retired, served as the commissioner of the Department of Labor and Industry under Gov. Rudy Perpich and Gov. Mark Dayton, and spent eight years as a state deputy attorney general. He lives in St. Paul.