Even if the FBI director's conduct did not

Posted on: October 31, 2016 at 15:58:33 CT

violate the letter of the Hatch Act, it may well have violated the spirit of the Act. After all, 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.
Some have argued that it would have been just as problematic for Comey to not disclose the existence of the new e-mails before the election. But when faced with such a dilemma, the Hatch Act is best understood as requiring the relevant government employee to balance the importance of the disclosure to pre-election public discourse against its potential prejudice.
In this case, where Comey communicated with Congress knowing that none of the e-mails were to or from Secretary Clinton, is difficult to understand the argument that the value to public discourse outweighed the potential prejudice to Clinton.
That calculus could well have been different if the e-mails contained information tending to incriminate (or exculpate) Clinton, but Comey had no way of knowing whether they did at the time of his communication -- and, at least so far, they appear not to do either.