DAVID GREENE, HOST:
The big news in the presidential campaign this morning - the FBI now has court permission to investigate newly discovered e-mails. These are emails that FBI Director James Comey says could be pertinent in the investigation of Hillary Clinton's private server. Plenty of unanswered questions here. Hillary Clinton's running mate, Tim Kaine, was campaigning in Michigan yesterday. He suggested that voters should keep their focus on other issues.
(SOUNDBITE OF ARCHIVED RECORDING)
TIM KAINE: So I'm going to ask you this - are any of you going to be distracted?
UNIDENTIFIED PEOPLE: No.
KAINE: Are any of you going to take your eye off the job at hand, which is producing an engaged electorate that will turn out and make the pick that we have to make in terms of our nation's next leadership? Nobody's going to be distracted, right?
GREENE: All right, is Tim Kaine there. We have Matthew Miller in the studio with us. He's a former top official in President Obama's Justice Department. He was in charge of public affairs. Thanks for coming in this morning.
MATTHEW MILLER: Thanks for having me.
GREENE: So James Comey, the FBI director, drops this bombshell Friday, saying there are these newly discovered emails. He's now facing accusations that he's trying to influence an election. Do you - do you see it that way?
MILLER: I don't think he was trying to influence an election, but I think he potentially did. One of the things that I found so troubling about his letter Thursday is, first of all, Department of Justice officials, including the FBI director, typically aren't supposed to comment on ongoing investigations at all. But they certainly aren't supposed to comment on ongoing investigations in the closing days before an election.
They usually interpret that to mean the last 60 days, let alone the last 11 days, because there's no way for the public to really interpret what the FBI is doing. They don't have any real substantive information, so he should have kept quiet. And it's unfortunate that he didn't.
GREENE: And we should say this was a letter that went to Congress and - suggesting that these emails - these newly discovered emails could be pertinent. Hillary Clinton's campaign has been very angry. We should say, you're a supporter of her campaign.
MILLER: Right.
GREENE: But, I guess, I just wonder - you know, you have this law, the Hatch Act, that bars government officials from using any position of influence to get involved in a campaign. I mean, could Comey have broken the law here?
MILLER: You know, I don't think he broke the law. I don't think he broke the Hatch Act, but he did violate department rules, regulations and practice. And there's kind of a difference between the three. The - you know, the ongoing - the rules about commenting on ongoing investigations are pretty strict.
They give you some exceptions, but they typically are limited to a matter of public safety, which this clearly isn't. And, you know, Eric Holder, the former attorney general, has a piece this morning in The Washington Post where he talks about guidance that he gave in 2012 that Comey has just clearly violated here about commenting on - on a matter that could influence an election this close.
GREENE: Guidance to not get involved this close to an election?
MILLER: Yeah, that's right.
GREENE: Well, you know, my colleague, NPR justice correspondent Carrie Johnson, says that her sources are telling her that Comey was worried that if news of these emails leaked out and he hadn't told Congress about their existence that it might look like he was involved in some kind of cover up. Is that a legitimate argument?
MILLER: It's not. You know, he's had a lot of arguments for why he did this. Part of them are because, you know, he told Congress about this beforehand. But he made a series of mistakes in this case, starting with his press conference in July. He keeps making mistakes. The solution...
GREENE: That's where he said that there weren't - there wasn't a reason to press charges against Hillary Clinton.
MILLER: Yeah, he did.
GREENE: The investigation was effectively over at that point.
MILLER: Yeah, and then went beyond that and commented on her behavior and made a bunch of other statements that are beyond what officials typically say. Once you've made one mistake, the solution is not to keep making mistakes. I also reject the argument that because he can't control people in his own department that that's a reason to then go out and violate the rules and unfairly influence an election.
GREENE: Just briefly here - we have a couple of seconds. But is there an argument that - that Hillary Clinton might have invited this in some way? There was all this concern about Bill Clinton meeting with the attorney general, Loretta Lynch. President Obama has come out saying that Hillary Clinton is innocent of everything. Could she have invited this somehow?
MILLER: Look, I think she made a mistake by setting up her initial server. I think that that's undoubtedly true. That does not excuse Jim Comey violating the rules for how investigative officials are supposed to handle these cases, however.
GREENE: OK, Matthew Miller served as director of the Office of Public Affairs for the Justice Department under President Obama. Thanks for coming in.
MILLER: Thanks for having me. Transcript provided by NPR, Copyright NPR.