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Local legal experts say accusations against FBI director difficult to prove

FBI Director James Comey (FOX 8 Photo/FILE) FBI Director James Comey (FOX 8 Photo/FILE)
NEW ORLEANS, LA (WVUE) -

Democratic Presidential Candidate Hillary Clinton could have done without FBI Director James Comey’s disclosure Friday while Republican Donald Trump views it as a final stretch gift.

Some Democrats, including Sen. Harry Reid, D-Nevada, believe Comey may have violated federal law in alerting members of Congress through a letter mere days before the election that the FBI was probing newly discovered emails that may be pertinent to the earlier probe into Clinton’s use of a private email server while she was secretary of state.

So what is the Hatch Act?

"The Hatch Act is a federal statute that's been around for about three-quarters of the century, and essentially it prohibits federal employees, federal officials, from making political statements or advocating for any particular candidate,” said former New Orleans U.S. Attorney Harry Rosenberg.

"The Hatch Act sets forth administrative standards that regulate and restrict the speech of federal government employees,” said Loyola University Law Professor Dane Ciolino.

Both agree that the Hatch Act does not have the legal teeth many may assume.

"It's not a criminal act, but it does subject federal employees to administrative sanctions,” Ciolino said.

"It does not involve criminal penalties,” Rosenberg said.

Still, given Democrats' outrage over the new FBI development, a flood of formal complaints is anticipated.

"Typically, if there's a complaint filed under the Hatch Act it goes to what's called the Office of Special Counsel. They will investigate,” said Rosenberg.

In July, Comey, under oath, told a Congressional committee that while no charges would be brought against Clinton, the FBI would “certainly look at any new and substantial information.”

"On its face, the letter is addressed to committee chairs in Congress and expressly says that the purpose of the letter is to update his Congressional testimony, so certainly on its face the letter doesn't present a Hatch Act violation,” said Ciolino.

"He was going to be cursed and criticized no matter what he did,” said Rosenberg.

"Had he not released the letter and it came out after the election, he no doubt would have been vulnerable to charges that he was hiding from Congress information that was critical to its assessment of his investigation,” continued Ciolino.

But complaints and accusations aside, Ciolino said it will be difficult to prove that Comey was motivated by politics.

"In order for there to be any Hatch Act violation, there would have to be a finding that the FBI director intentionally and for the purpose of affecting this election released the letter that he did on Friday,” he said.

"When you look at the Hatch Act, which a lot of people are clamoring about, it has to be a violation done with the intent to affect an election,” said Rosenberg.

And while not judging Comey, Rosenberg said he should stay away from actions that could be misconstrued close to an election.

"We tended, at least during my tenure, to hold off, wait until the election was over. It is a balancing act because the public feels they have a right to know. On the other hand, you don't want to affect the election by pursuing an indictment right on the eve of the election,” said Rosenberg.

He said even after the Office of Special Counsel investigated, the sitting president would have a role to play.

“It will then go to an administrative board who ironically would make a recommendation to whoever the president is, and the president will decide whether any action should be taken,” said Rosenberg.

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