On Friday afternoon, the FBI uncorked the mother of all October surprises, announcing in a letter to Congress that it has re-opened its investigation of Hillary Clinton’s “personal email server.” The reason? During an “unrelated investigation”* it uncovered e-mails that “appear to be pertinent” to Clinton’s case. It is seeking to determine whether the e-mails contain classified information and can’t yet determine their significance.
Stripped of the legalese, it means that Hillary is back in legal jeopardy. The FBI doesn’t investigate and recommend enforcement actions against computer servers. It holds people accountable, and Hillary is the person most responsible for her own e-mail. I have three initial thoughts.
Second, the e-mails could have an impact on the decision whether to charge Hillary or her aides either under the Espionage Act or for obstructing the initial investigation, perhaps by lying to the FBI. Recall that Comey previously exonerated Clinton under a made-up legal standard, but if there are more e-mails — and if Clinton or her aides worked to conceal their existence from the FBI — then their conduct may even rise to the FBI’s arbitrary, higher threshold of lawlessness. At the very least, it renders the FBI’s previous decision not to prosecute even more suspect.Third, unless the FBI announces the investigation and clears her within the span of basically one work week (an action that would be deeply problematic on its own terms), Hillary’s closing argument to the American people is going to be that Donald Trump is so dangerous that it’s worth gambling your vote on a woman under current criminal investigation.
*Update: It turns out the “unrelated investigation” that triggered the FBI’s decision was its investigation into Anthony Weiner’s serial sexting.
— David French is an attorney, and a staff writer at National Review.