It hurts to find myself in the position of having to defend FBI Director James Comey. We aren’t old friends, and, well, I’m not a big fan. But in order to find a scapegoat, a lot of folks are shedding their blue suits (or blue jeans, as the case may be) for pink hotpants. A week from now, we’ll be past the election, but the damage done people’s understanding of the law will stay with us. That’s a problem.

Jim Comey has no friends in Washington. Harry Reid sent him a letter regretting his backing Comey’s nomination.

It looks like Reid told him. But then, so did some ex-Justice lawyers, like Jamie Gorelick and Larry Thompson, neither of whom was a stranger to partisan politics when in office, and Richard Painter, a former White House lawyer. The former exclaim that Comey will be responsible for the death of democracy (nothing hyperbolic there) for not honoring a decades-old gentlemen’s agreement to do nothing within 60 days of an election to influence its outcome. The latter claims it’s a Hatch Act violation because, well, he never actually says.

For the unwary, this creates an appearance of impropriety. That’s what it’s intended to do. But it’s all innuendo and wiggle words, secret sources and implications. The problem isn’t that there is a smoking gun to prove that what Comey did was right. The problem is that these attacks fail to prove that Comey did anything wrong.

As context, if Comey did nothing, in honor of the gentlemen’s agreement, and after the election, explained to Congress that he failed to timely correct his testimony, failed to reveal to the American public what was learned, actively concealed material facts in direct contravention of his duty to correct his testimony, would he get a pass if he explained, “but there’s a gentlemen’s agreement”? Or “but there are field agents who told me I shouldn’t”? Or maybe “I didn’t want to influence the election”?

But regardless of which way he went, Comey would influence the election. If he reveals his findings in a letter to Congress, he influences it against Hillary Clinton. If he doesn’t, he influences the election against Donald Trump. His detractors all have one thing in common: they support Clinton and/or do not support Trump.

This isn’t the ordinary situation. As much as partisans contend that there are clear rules dictating what Comey should do, that’s disingenuous. Adding adjectives, ominous claims, designed to warm the cockles of the politically passionate, do not make it so. Painter writes:

Serious questions also arise under lawyers’ professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.

This? This? Oh, come on. Comey wrote a letter, as tepid as it could be, to Congress correcting his testimony. He didn’t put on a dog and pony show like the Department of Justice does daily, without criticism I might add. But what of his earlier press conference, the one Clinton supporters loved until they hated it? Had Attorney General Loretta Lynch not compromised her integrity by getting caught in a secret meeting with Bill Clinton, then expressly telling Comey to make the call, it would never have happened.*

Then comes the nitty gritty level of rationalizations.  At Volokh Conspiracy, Orin Kerr takes on the Fourth Amendment search issues, which Tim Cushing at Techdirt calls “thorough.” Of course, agents stumble on “pertinent” emails during examination of Weiner, an easy “plain view” exception. Bring them to Comey, who then becomes aware of them, and is told there are plenty more where that came from. Comey needs a warrant to pursue it further, but he already knows what he knows. And even if the search exceeded plain view, Clinton would have no standing to challenge it anyway. This isn’t hard stuff, unless one squints as tightly as one can while screaming “lalala.”

The intrigue, combined with the fact that very few legally knowledgeable people don’t think Trump will be a disaster, if for no other reason than he appears bizarrely clueless, if not antithetical, as to civics, law and Constitution, has sucked in a few generally skeptical folks, like Tim and Marcy Wheeler. In fairness, neither is a lawyer. But then, intrigue is more fun than law.

There is no guiding easy answer to what a non-partisan FBI Director should have done under the circumstances. The law would appear to compel him to correct his response to Congress. The “gentlemen’s agreement” would suggest he should keep his yap shut until after the election, and there is good reason why this unwritten policy exists. The FBI should not be influencing an election, which it could all too easily do and which, as Gorelick and Thompson note, could be too easily abused to undermine democracy.

But what should Comey do? In the absence of any definitive answer, and there is no definitive answer, he had to make a call. He’s the FBI’s big guy. That’s the burden the big guy carries, making hard, if not impossible, calls. This isn’t to say he made the right call, but it is to say that the cries of former official government lawyers that he clearly made the wrong call are crap.

And the one detail that all this hubbub ignores is that Comey is tangential to the problem facing America. For most of America, the choice is the lesser of two evils. For Clinton, she made her bed. Whether that’s a big deal, or a problem at all, has nothing to do with Comey. Everybody’s furious about our situation, but Comey didn’t make this happen. He’s just the easiest target for the moment, and saves America from having to focus on why we give a damn about Comey at all. That’s not his fault either. That’s ours.

*Had I been advising Comey, I would have suggested he tell AG Lynch, “your ethical improprieties do not change my job description,” and refuse to become embroiled in this no-win situation. The mistake wasn’t what he said, but that he allowed himself to become the pawn in the game in the first place.