When to Disclose What About an Investigation: Director Comey’s Not Alone

When to Disclose What About an Investigation: Director Comey’s Not Alone

The cultural allusions tumble one after another in my head.

“Damned if you do, damned if you don’t.”

“The evil that men do lives after them; The good is oft interred with their bones.” (Julius Caesar, Act 3, Scene 2)

And, for Star Trek fans, echoes of the Kobayashi Maru.

What am I thinking about?

FBI Director Comey.

Unlike Mark Antony in Shakespeare’s Julius Caesar, I write neither to bury nor to praise. For one, I lack sufficient familiarity with the protocols and historic practices of the FBI in dealing with politically sensitive investigations. For another, given the flip-flops of Republicans and Democrats alike, one suspects that serious and thoughtful discourse about the right course of action in the present set of circumstances borders on the impossible. Rarely, in a matter of months, have so many gone from describing someone as a saint to describing him as a demon, and so many others traveled in the opposite direction.

Director Comey’s situation is very much like that of other heads of investigative agencies. FDLE and the Florida Commission on Ethics, for example, frequently are asked about the existence of investigations.

The common practice of many agencies is not to comment on the existence of or the progress of investigations. In part, this reflects the agency’s understanding that investigations don’t always lead to prosecutions. Indeed, many allegations prove to be false or unprovable. In complaint-driven systems in particular, there is a well-supported sense that acknowledging an investigation plays into the hands of those who seek to use the investigative resources of our government to personal political advantage.

On the other hand, there are incidents that already are known to the public. In such cases, agencies often acknowledge that an investigation is under way, in part to reassure the troubled public that appropriate actions are being taken, in part to acknowledge the obvious truth everyone already knows.

When an investigation is initiated against a prominent figure, agency heads face a particularly difficult decision.  Announcing the investigation will damage the individual, perhaps unjustifiably. When the investigation is completed, often weeks, months or sometimes even years later, and charges are not brought, in most cases that announcement will make barely a ripple in the media pool. The alleged evil lives on in the memories of citizens, potentially eclipsing the good that the innocent and falsely accused has done.

On the other hand, not to acknowledge that a prominent figure is being investigated, especially when rumors are circulating that an investigation is under way, may be viewed as providing unwarranted protection for that individual, especially if and when the investigation leads to an indictment.

On the front end of an investigation, no one knows where it will end up. One can’t decide to announce because one knows an indictment will be forthcoming anyway. One can’t decide not to announce because one knows the allegations are false. One simply doesn’t know.

And so, one is damned if one does, and damned if one doesn’t.

Even city councilmembers may face this dilemma. One might hear reports that certain administrators are giving an unfair advantage to a certain vendor, or that hiring and promotion decisions are being made based on faulty criteria. The same rumor might have circulated to the press. When the reporter finds out that the councilmember is scrutinizing certain contracts, the councilmember is faced with a dilemma not unlike the one faced by Director Comey.

To acknowledge that one is undertaking an investigation is to taint the target of that investigation in a headline story, without any confidence that, in fact, the individual has done anything wrong. To decline to comment is problematic at multiple levels (as any media trainer will say). To nuance a response seems disingenuous and may lead, later, to allegations of a cover up.

What to do?

While one can’t know the outcome of the investigation, one can know who will be harmed under various possible outcomes. And if we have the makings of a good public leader, we can choose, for lack of a better way to put it, who might get hurt. We can protect the public institution we lead and the people we serve, giving their good priority over everything else. As leaders of public institutions, that’s probably a good guide to the right decision. But what that will lead us to do will depend greatly on the specifics of the case.

We probably won’t be heralded as heroes when we do this. Because Mark Antony had it right. When it comes to the court of mediated public opinion, it is often the evil that we do that lives after us, the good that is interred with our bones.

But we’ll know the good we tried to do. And that, for the good leader, is what makes the difference

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