The thing to understand, what has always been the most important thing to understand, is that Jim Comey was out in front, but he was not calling the shots.
On the right, the commentariat is in full-throttle outrage over the revelation that former FBI Director Comey began drafting his statement exonerating Hillary Clinton in April 2016 – more than two months before he delivered the statement at his now famous July 5 press conference.
The news appears in a letter written to new FBI Director Christopher Wray by two senior Senate Judiciary Committee Republicans, Chairman Chuck Grassley and Senator Lindsey Graham. Pundits and the Trump administration are shrieking because this indicates the decision to give the Democrats’ nominee a pass was clearly made long before the investigation was over, and even long before key witnesses, including Clinton herself, were interviewed.
It shows, they cry, that the fix was in!
News Flash: This is not news.
Let’s think about what else was going on in April 2016. I’ve written about it a number of times over the last year-plus, such as in a column a few months back:
On April 10, 2016, President Obama publicly stated that Hillary Clinton had shown “carelessness” in using a private e-mail server to handle classified information, but he insisted that she had not intended to endanger national security (which is not an element of the [criminal statutes relevant to her e-mail scandal]). The president acknowledged that classified information had been transmitted via Secretary Clinton’s server, but he suggested that, in the greater scheme of things, its importance had been vastly overstated.
This is precisely the reasoning that Comey relied on in ultimately absolving Clinton, as I recounted in the same column:
On July 5, 2016, FBI director James Comey publicly stated that Clinton had been “extremely careless” in using a private email server to handle classified information, but he insisted that she had not intended to endanger national security (which is not an element of the relevant criminal statute). The director acknowledged that classified information had been transmitted via Secretary Clinton’s server, but he suggested that, in the greater scheme of things, it was just a small percentage of the emails involved.
Obama’s April statements are the significant ones. They told us how this was going to go. The rest is just details.
In his April 10 comments, Obama made the obvious explicit: He did not want the certain Democratic nominee, the candidate he was backing to succeed him, to be indicted. Conveniently, his remarks (inevitably echoed by Comey) did not mention that an intent to endanger national security was not an element of the criminal offenses Clinton was suspected of committing – in classic Obama fashion, he was urging her innocence of a strawman crime while dodging any discussion of the crimes she had actually committed.
As we also now know – but as Obama knew at the time – the president himself had communicated with Clinton over her non-secure, private communications system, using an alias. The Obama administration refused to disclose these several e-mail exchanges because they undoubtedly involve classified conversations between the president and his secretary of state. It would not have been possible to prosecute Mrs. Clinton for mishandling classified information without its being clear that President Obama had engaged in the same conduct. The administration was never, ever going to allow that to happen.
What else was going on in May 2016, while Comey was drafting his findings (even though several of the things he would purportedly “base” them on hadn’t actually happened yet)? Well, as I explained in real time (in a column entitled “Clinton E-mails: Is the Fix In?”), the Obama Justice Department was leaking to the Washington Post that Clinton probably would not be charged – and that her top aide, Cheryl Mills, was considered a cooperating witness rather than a coconspirator.
Why? Well, I know you’ll be shocked to hear this, but it turns out the Obama Justice Department had fully adopted the theory of the case announced by President Obama in April. The Post explained that, according to its sources inside the investigation, there was “scant evidence tying Clinton to criminal wrongdoing” because there was “scant evidence that Clinton had malicious intent in [the] handling of e-mails” (emphasis added). Like Obama, the Post and its sources neglected to mention that Mrs. Clinton’s felonies did not require proof of “malicious intent” or any purpose to harm the United States – just that she willfully transmitted classified information, was grossly negligent in handling it, and withheld or destroyed government records.
As I recounted in the same May 2016 column, the Obama Justice Department was simultaneously barring the FBI from asking Mills questions that went to the heart of the e-mails investigation – questions about the process by which Clinton and her underlings decided which of her 60,000 e-mails to surrender to the State Department, and which would be withheld (it ended up being about 33,000) as purportedly “private” (a goodly percentage were not).
This was the start of a series of Justice Department shenanigans we would come to learn about: Cutting off key areas of inquiry; cutting inexplicable immunity deals; declining to use the grand jury to compel evidence; agreeing to limit searches of computers (in order to miss key time-frames when obstruction occurred); agreeing to destroy physical evidence (laptop computers); failing to charge and squeeze witnesses who made patently false statements; allowing subjects of the investigation to act as lawyers for other subjects of the investigation (in order to promote the charade that some evidence was off-limits due to the attorney-client privilege); and so on. There is a way – a notoriously aggressive way – that the Justice Department and FBI go about their business when they are trying to make a case. Here, they were trying to unmake a case.
Knowing all these things, as we now do and have for a year, I’m baffled by complaints that Comey allegedly made “his” decision not to charge Clinton before key witnesses were interviewed. The main issue is not that witnesses hadn’t been questioned; it is that by April 2016, restraints were already in place to ensure that witness interviews would be fruitless, and that any incriminating information they accidentally turned up would be ignored or buried.
The decision not to indict Hillary Clinton was not made by then-FBI Director Comey. It was made by President Obama and his Justice Department – Comey’s superiors. If you want to say Comey went along for the ride rather than bucking the tide (as he concedes doing when Lynch directed him to call the Clinton probe a “matter,” not an “investigation”), that’s fair. But the fact that Comey already knew in April what he would say in July has long been perfectly obvious. The Obama administration was going to follow its leader. What Comey ultimately stated was just a repeat of what Obama was openly saying in April, and what Obama’s Justice Department was leaking to the press in May.
Bottom line: In April, President Obama and his Justice Department adopted a Hillary Clinton defense strategy of concocting a crime no one was claiming Clinton had committed: to wit, transmitting classified information with an intent to harm the United States. With media-Democrat complex help, they peddled the narrative that she could not be convicted absent this “malicious intent,” in a desperate effort to make the publicly known evidence seem weak. Meanwhile, they quietly hamstrung FBI case investigators in order to frustrate the evidence-gathering process. When damning proof nevertheless mounted, the Obama administration dismissed the whole debacle by rewriting the statute (to impose an imaginary intent standard) and by offering absurd rationalizations for not applying the statute as written.
That plan was in place and already being implemented when Director Comey began drafting the “findings” he would announce months later. But it was not Comey’s plan. It was Obama’s plan.