Politics & Policy

Comey’s Unintended Favor to Trump

FBI director James Comey on Capitol Hill in July (Reuters photo: Jonathan Ernst)
By letting Clinton off the hook, the FBI proved that she plays by a different set of rules.

Perhaps FBI Director James Comey did Donald Trump an unintended favor.

Hillary Clinton’s e-mail server was always going to be a problem for her.  But it was unlikely to be enough, by itself, to torpedo her campaign.

Fairly or not, the byzantine scandal — as if the Clintons have ever trafficked in any other kind of scandal — was destined to seem like inside baseball to many Americans, particularly those who don’t pay a lot of attention to the news. Clinton’s defense has carefully shifted from “I did not e-mail any classified material to anyone on my e-mail” to a more technical discourse on the labeling of said material. What it adds up to is a trip down the rabbit hole: BleachBit, NOFORN, SCIFs, PRN servers — to an outsider, it sounds like a lot of gobbledygook and the usual Washington squabbling and finger-pointing.

Now, however, with the FBI’s investigative report released, Trump has a much simpler argument to put forth: The bureau uncovered plenty of evidence Hillary Clinton and her staff committed crimes but chose to not prosecute, because she’s Hillary Clinton.

John Lester, a retired Naval lieutenant, put it to Clinton directly at NBC’s Commander-in-Chief town hall on Wednesday: “As a naval flight officer, I held a top-secret, sensitive, compartmentalized information clearance. And that provided me access to materials and information highly sensitive to our war-fighting capabilities. Had I communicated this information not following prescribed protocols, I would have been prosecuted and imprisoned.”

In other words, the e-mail scandal is now less about what was on Clinton’s server and whether it was hacked than about whether or not there are consequences when someone like her commits a crime. Everybody in America can understand that; everybody’s seen someone get special treatment because of their wealth, fame, or connections. Every American has had some moment where they felt they got the short end of the stick, and watched someone else come out on top because of special advantages. This is the one thread that connects the Tea Party and Occupy Wall Street, the one thing that unites free-market libertarians who see cronyism in government investments and Black Lives Matter activists who contend police aren’t held accountable for shootings. 

There’s one rule for Hillary Clinton and another rule for everyone else.

Everybody’s seen someone rich, powerful, or connected get away with something, and everyone’s felt that sense of outrage deep in their gut, that sense that America isn’t living up to its promise when the privileged get away with misdeeds for which others would pay dearly.

Picture Comey’s office when the complete 68 pages of the FBI investigation comes to his desk. It’s a mess for her:

  1. Despite many public denials, 110 of her e-mails contained classified information. This, by itself, is a crime.
  2. She and/or her team destroyed e-mails that were under congressional subpoena.
  3. Her team used BleachBit to erase e-mails that were required to be preserved under public-records laws.
  4. She had not turned over work-related e-mails as she claimed; several thousand work-related e-mails were not given to the State Department, as required by law.
  5. Despite her continued insistence that her system was secure, an unknown individual using the encrypted privacy tool Tor to hide their tracks accessed an e-mail account on a Clinton family server.
  6. The evidence pointed to a deliberate, ongoing effort to keep all of her communications off of the secure State Department system, which would be subject to subpoenas and Freedom of Information Act requests. She used several different e-mail servers on her private system, as well as 13 mobile devices and five iPads.
  7. At no time did she get permission, as required, to do official work on her mobile devices. Clinton frequently lost her phones — which included her e-mails with classified information — and she and her staff could not account for them. An assistant to former president Bill Clinton lost a laptop holding Hillary Clinton’s e-mails. Again, as secretary of state, she swore an oath to protect that information. As Comey declared in his statement, “even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”
  8. Either she or her staff lied to the FBI; Clinton said she never had a computer in her Secure Compartmentalized Information Facility (basically, a room that is nearly impossible to bug or eavesdrop). Huma Abedin said she did.
  9. During the interview with the FBI, Clinton said she “couldn’t recall” more than three dozen times. One portion of the report suggests Clinton could not remember whether or not she received security briefings. But she had previously signed official documents declaring she had been properly briefed.

Comey looked at that report and saw plenty of potential reasons to recommend impaneling a grand jury. But had the FBI recommended seeking an indictment of Hillary Clinton, it undoubtedly would have created a political earthquake. The entire Democratic Party would have exploded in rage at the bureau. Comey would have instantly been painted as worse than Ken Starr, worse than Inspector Javert, worse than Torquemada. Clinton defenders would charge that the FBI was torpedoing her presidential campaign, and they might just be right: At the time of Comey’s decision, the Democratic convention was just three weeks away. If the FBI recommended seeking an indictment, Bernie Sanders might have made another push at the convention. Perhaps Democratic delegates would have panicked. Maybe Joe Biden would have suddenly changed his mind.

#related#So Comey tried to split the baby: He declined to recommend an indictment citing a nonexistent need to prove intent, while at the same time giving Clinton and her team a firm public rebuke for being “extremely careless in their handling of very sensitive, highly classified information.”

Ask anyone else who handles classified information if they would rather face criminal charges and fines and a year’s imprisonment, or just a public verbal rebuke from the FBI director.

There’s one rule for Hillary Clinton and another rule for everyone else. Thanks to Comey, Trump can now make the election a referendum on her privilege.


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