Complaint Against FBI Director Under the Hatch Act: What Does The Hatch Act Say?

By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli
Part Two Of Two Parts. Read Part 1.

New York, NY  -(Ammoland.com)- The “Hatch Act” was named for the sponsor of the original bill, Senator Carl Hatch, Democrat, New Mexico, in 1939. Then, as now, the import of the Act is to preclude federal bureaucrats from becoming involved in political campaign activities. The Act in its present form, diluted from the original Statute, is codified in 5 U.S.C.S. § 7323. The Statute is titled, “Political activity authorized; prohibitions.”

The applicable portion of the Act Painter ostensibly relies on says:

“(a) Subject to the provisions of subsection (b), an employee may take an active part in political management or in political campaigns, except an employee may not—

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election. . . .”

Now, in his letter to Congressional leaders, Comey says “the FBI has learned of the existence of emails that appear to be pertinent to the investigation.”

The legal issue that Painter raises in his complaint is whether, through his letter to Congress, James Comey has “use[d] his official authority or influence for the purpose of interfering with or affecting the result of an election.”

Specific intent to influence is required to support a charge under the Hatch Act. The FBI Director was simply doing what his duties require him to do. He was investigating violations of federal law. The fact that the FBI was investigating a person who happens to be running for Public Office doesn’t obviate the Director’s duty to investigate violations of federal law whether a person is running for political office or not. In the in the instant case, the FBI was investigating serious crimes, felonies, and multiple counts that Hillary Clinton and her henchmen and her henchwomen had committed over a period of several years.

It is specious to make the argument, as Painter does, that the FBI is to forbear investigating violations of federal law simply because a person happens to be running for political office. But, that, in its essence is the foundation of his argument that Painter violated the Hatch Act. In fact Painter undermines whatever merit he claims to filing the Complaint by saying, “I do not know whether the Director of the FBI personally wanted to influence the outcome of an election, although the content and wording of this week’s letter is of concern.” So, Painter paints his Complaint against Comey on bald conjecture and opinion. Painter knows his Complaint has no legal basis.

We can infer, then, that Painter filed his Complaint against Comey in bad faith. Painter, an expert on the law is not ignorant of the import and purport of the Hatch Act. We must, then, return to Painter’s motivations.

Did someone approach Painter, asking him to file an ethics claim against Comey?

That is certainly possible, even probable. Since Painter doesn’t support Trump, he would be a willing partner in filing a spurious claim against Comey to cast false aspersions on the FBI Director. Painter’s objective, then, in filing his Complaint, is clear. He seeks to prop up Clinton—to dupe the American people. He attempts to cast a vile criminal, Clinton, in a good light, by drawing attention to Comey, attempting to cast a basically honorable man in a bad light. Painter’s purpose? He seeks to draw votes, in these final hours, to Clinton, and away from Trump.

We are not alone in our judgment that Painter filed a dubious Complaint against James Comey.

A prominent legal scholar, Jonathan Turley, also took Painter to task. Turley points out that nothing in Painter’s complaint supports a reasonable inference that Comey intended to influence the outcome of the election through his notification to Congress. Turley’s legal analysis of Richard Painter’s complaint is instructive. Turley says,

“Comey has kept Congress informed in compliance with oversight functions of the congressional committees but has been circumspect in the extent of such disclosures. It is troubling to see Democrats (who historically favor both transparency and checks on executive powers) argue against such disclosure and cooperation with oversight committees. More importantly, the Hatch Act is simply a dog that will not hunt.

Richard W. Painter, a law professor at the University of Minnesota and the chief ethics lawyer in the George W. Bush White House from 2005 to 2007, has filed a Hatch Act complaint against Comey with the federal Office of Special Counsel and Office of Government Ethics. He argues that “We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway.”

However, Comey was between the horns of a dilemma. He could be accused of acts of commission in making the disclosure or omission in withholding the disclosure in an election year. Quite frankly, I found Painter’s justification for his filing remarkably speculative. He admits that he has no evidence to suggest that Comey wants to influence the election or favors either candidate. Intent is key under the Hatch investigations.  You can disagree with the timing of Comey’s disclosure, but that is not a matter for the Hatch Act or even an ethical charge in my view.

Congress passed the Hatch Act in response to scandals during the 1938 congressional elections and intended the Act to bar federal employees from using “[their] official authority or influence for the purpose of interfering with or affecting the result of an election.” Comey is not doing that in communicating with Congress on a matter of oversight.”

In his Complaint to the Office of Special Counsel and to the Office of Government Ethics, Richard Painter also asks the Office of Special Counsel and the Office of Government Ethics to investigate the Director of the FBI to ascertain whether the Director violated 5 CFR § 2635.702 which forbids use of public office for private gain. The Statute says, in principal part that:

“An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.”

Beyond the naked request, Painter offers no reason at all for claiming the FBI Director has gained anything personally, from investigating violations of federal law. Isn’t the purpose of the FBI to do precisely what the FBI Director did: investigate violations of federal law?

In his Complaint, Painter says, “Violations of the Hatch Act and of this ethics rule [5 CFR § 2635.702] are not permissible in any circumstances, including an executive branch official acting under pressure from persons such as the president and politically motivated members of Congress.”

Apart from stating the obvious, Painter says nothing that would paint a picture of wrongdoing on Comey’s part. Curiously, Painter has painted a most exquisite painting of Hillary Clinton’s violation of 5 CFR § 2635.702. Wasn’t the FBI investigation into the Clinton Foundation predicated on substantive and substantial evidence that Hillary Clinton used the Department of State as a mechanism through which she doled out favors for cash? Did she not use her position as Secretary of State to establish a grand “Pay to Play,” scheme reaping in tens of millions of dollars? Would she not extend that “Pay to Play” to the White House? Imagine the vast stores of money Clinton could accumulate through the sale of the Office of the President of the United States? Such bribery and corruption this Nation has never before seen!

If Painter is truly concerned about Ethics in Government, why did he not file his Complaint against Hillary Clinton? The evidence supporting claims of Clinton’s ethics violations would fill volumes.

Alas, No Horatius For The American People

Comey could have been America’s our “Horatius at the Bridge.” Alas, at the Eleventh Hour, he failed the Nation and the American People. Comey buckled under to the forces that seek to push through a criminal for President.

We then receive a bombshell from Fox News. Fox News reports, on November 3, 2016, that an indictment of Clinton is almost certain. Then, one day later, the same news network hits the public with another bombshell. Fox news not only retracts its statement that an indictment is almost certain but apologizes for making it.

Fox News apparently heard that Comey would not recommend an indictment after all. The American public is then hit with the third bombshell, on November 6, 2016. Although it would ordinarily take weeks if not months to sift through all the emails found on Weiner’s computer, James Comey says the FBI won’t recommend an indictment of Hillary Clinton. See, for example.  It seems that whoever threatened James Comey, originally, reminded Comey that the threat still stands.

Understand, if Trump becomes President, Clinton likely will be indicted on one or more charges of violations of federal law. If the U.S. Department of Justice cannot or will not indict and prosecute Clinton, Congress will likely enact legislation appointing independent counsel to investigate, indict, and prosecute both Bill and Hillary Clinton and their Foundation. Likely, Obama would be caught up in the investigation. Many other powerful, influential people would be caught up in the dragnet.

Do Americans Still Live In A Free Republic?

We infer that a quiet coup of our Government has occurred and only a Trump Presidency will be able to flush it out. Those who have much to lose have taken steps to thrust a Clinton Presidency down our throats.

So, we come full circle. Powerful interests in Government—Centrist Democrats and Republicans—working on behalf of each other, and on behalf of powerful, wealthy, influential, and wholly corrupt international financial interests both here and abroad, do not want to see their power diminished and defused. They do not want to see their personal goals and aims for a one world government—one they have worked long and hard for—undermined and jeopardized.

The destructive course they have set for our Nation will be set aright only by a Trump win in this election. The Bushes and Clintons—and their silent, powerful, secretive backers—have pulled out all the stops.

They intend to seat, in the White House, the most venal, and vain, and vile individual ever to hold public office, Hillary Rodham Clinton. That says as much about them as it does about her.

Only we, Americans, can bring this frightful, terrible juggernaut to a screeching halt. We have flushed these denizens of the night out into the light of day—these vampires of the night that would deny us our Birthright, that would break our Will, that would suck the lifeblood of our Nation. We cannot rely on Congress to preserve and protect our Nation. We cannot rely on the U.S. Supreme Court to secure our sacred Bill of Rights and to maintain the supremacy of our laws over those of other Nations and over those of extrajudicial foreign bodies. And, we certainly cannot rely on the Imperial Presidency to safeguard our freedoms.

It is up to each and every American citizen to remind those who hold high Office in Government that they serve us, and they do so at our pleasure; that we do not serve them at their pleasure.

“We are our own destiny. If we are victims at all, or conquerors, we have done it in our minds and our will, or with our faulty judgments or our illusions. If we permit others to exploit us, in private life or in government, we chose it. Or we made the fatal error of acquiescence, and for that we should be condemned. The world forgives everything but weakness and submission. It forgives everyone but a victim. For there is always battle, even if you die in it. In any event death comes to all men. How you died was your own choice, fighting or submitting.” ~Taylor Caldwell, “Captains and the Kings,” Part One, Chapter 17, page 178 (Doubleday & Company, Inc., 1972).

We are at a definite crossroads. The founders bequeathed to us a Bill of Rights; and they made clear to all other Nations and to all foreign interests that we are an independent sovereign Nation composed of a free people—a people who control their own destiny. Our founders are watching us now. They are wondering whether we, Americans, their descendants, are worthy of retaining the Nation and the Constitution they bequeathed us.

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