By David French
Friday, October 28, 2016
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.
First, these e-mails must be prima facie problematic. There is no way the FBI publicly re-opens
this investigation on the eve of a presidential election if the new e-mails
contained information about yoga routines or wedding plans. Moreover, the very
fact that the FBI is trying to determine whether the e-mails contain classified
information indicates that their content is setting off alarm bells in the
Bureau. In other words, this is serious.
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.
Will there be any Democrats who will urge Clinton to step
aside? Exactly three weeks ago, the Washington
Post released tapes showing Donald Trump bragging about committing actions
that easily meet the legal test for sexual battery. In the aftermath, a number
of Republicans asked him to step aside for the good of the country. Now it’s
the Democrats’ turn. Their candidate is back under criminal investigation. Millions
of people have already cast votes for her believing she’d been “cleared.” Is
her personal ambition worth this national pain?
*Update: It
turns out the “unrelated investigation” that triggered the FBI’s decision was
its investigation into Anthony Weiner’s serial sexting.
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