MICHEL MARTIN, HOST:

We wanted additional perspective on this story from a legal perspective. So we reached former Attorney General Alberto Gonzales. He led the Justice Department during the administration of George W. Bush. He's also a former White House counsel and a former Texas Supreme Court judge. He's now dean of the law school at Belmont University School of Law in Nashville. Judge Gonzales, thanks so much for speaking with us once again.

ALBERTO GONZALES: It's always a pleasure to be on your show.

MARTIN: What was your reaction when you read the letter from FBI Director James Comey to Congress alerting Congress to the discovery of these new emails?

GONZALES: I must confess that I was a little surprised. Before I continue my answer, let me just say that anything that I say about what's going on at Justice is pure speculation. Obviously, you know, I'm just going based on my experience as the attorney general, but, yeah, surprised because typically you don't talk about investigations. Sometimes you may make an announcement about an investigation and then you turn out not to do anything about it, but nonetheless it adversely affects someone's life. And it kind of surprised me that that letter went out, and I suppose that the reason for it is because we're in the middle of a presidential campaign. But nonetheless, I think it would be contrary to typical protocol.

MARTIN: NPR and other news organizations are reporting that the Justice Department reminded the FBI about department guidelines against speaking publicly about an ongoing criminal case and about not taking steps that could be perceived as influencing the election. And so my question to you is, you know, was it appropriate for the director to disregard this guidance?

GONZALES: If it's just guidance, that's one thing. If it's a directive from the attorney general, that's quite another thing. And, you know, the FBI director has been out on his own, quite frankly, with respect to this investigation. We really haven't seen much of the attorney general or people from the Department of Justice. So it's very consistent with the way this investigation has been handled, and that is that the decisions have been made by the Federal Bureau of Investigation.

Quite frankly, it is one reason that I'm somewhat mystified about how this whole thing has progressed. You know, we do have certain protocols in place with respect to doing the investigation by the FBI. And then prosecutors at the Department of Justice are the ones who ultimately make the decision as to whether or not to move forward with prosecution of a crime.

We haven't seen that here. It may be that behind the scenes that's occurring. But certainly publicly, we haven't seen a situation where you have the FBI director talk about an investigation side by side with the attorney general who confirms, yes, I accept the recommendation of the FBI director. We haven't seen that happen here, and that to me raises questions in my mind as to why that is the case.

MARTIN: Well, to that end, though, there was this whole situation earlier this year - this was in June - when former President Bill Clinton boarded the plane that the attorney general - current Attorney General Loretta Lynch was on in Phoenix when they both happened to be there for a speaking engagement. And this was described by both parties as just a courtesy call. But given that there was an ongoing investigation, a lot of people thought that this was inappropriate. And after that, the attorney general said that she would recuse herself and hand the authority for this matter or decision making to the FBI. This was on the tarmac, you know, of - for people...

GONZALES: Yes.

MARTIN: ...Who remember this story. Was that handled appropriately in your view?

GONZALES: Well, I think that the actual meeting itself was very unfortunate because while it may have been totally innocent, the timing of it - a week before Mr. Comey made his pronouncement - to have that kind of conversation I think was very unfortunate and creates an appearance of perhaps a bias. And I think in that situation, I would not have been surprised to see the attorney general officially recuse her herself from the investigation. And if that were to have occurred, then the deputy attorney general would have been in charge of the investigation so that the FBI would conduct its investigation, present its evidence to the deputy attorney general and the deputy attorney general would make the decision as to whether or not to move forward with the prosecution.

MARTIN: So what I think I hear you saying is that a lot of things about this investigation have proven to be unusual.

GONZALES: Well, you're certainly right that based upon my understanding and recollection of protocol and certainly practice, what we're saying here in connection with this investigation is very unusual. And I think because some of the decisions made here, particularly by the FBI director that have been - that's been inconsistent with the practices - it's put him in a very, very difficult and awkward position. And he's received a lot of criticism and second guessing for that.

And so, yes, I think it is fair to say that we do have protocols in place, and it appears that, you know, many of those protocols have not been followed here. Now - and I understand we have, you know, a very unique situation, a very volatile election, two very high-profile candidates. You want to be very careful about what you do. But, you know, my sense is always - this is with respect to any decision maker - and that is you have procedures in place, when you follow those procedures, you're more likely to get the right outcome and you're less likely to be second guessed simply because you have the procedures and you take away the argument that there are politics involved if you follow the procedures. Again, this is true for any decision maker. And I think that's part of the reason why the FBI director finds himself under constant criticism for some of the decisions and actions that he's taken with respect to this investigation.

MARTIN: But can I just ask you point blank, though, if - would you have recommended that the FBI director not send this letter to Congress?

GONZALES: It's hard for me to answer that question, Michel, without really knowing what information they have. And the difficulty the director has though is that you've got an ongoing investigation. You generally do not talk about the facts or the evidence that you have in an ongoing investigation. One other thing I can say is that the FBI director's probably spent a great deal of pressure to go either way - you know, to have said something, to not have said something. And, you know, he made the decision this was the right way to go. You know, I'm not going to second guess him without knowing all the information related to the investigation.

MARTIN: Alberto Gonzales was attorney general in the administration of George W. Bush. He's currently serving as dean of the law school at Belmont University School of Law in Nashville. Judge Gonzales, thank you so much for speaking with us.

GONZALES: Thanks for having me. Transcript provided by NPR, Copyright NPR.