FBI Director James Comey’s announcement on Sunday that the FBI has concluded its review of the emails found on the Anthony Weiner electronic devices seems reasonable. I actually had a bad cold two weeks ago and, as many of my friends know, I was off my computer and email for several days. Between my life as a rabbi, a law professor, an attorney, and a political commentator, I get a ton of new emails in my inbox every day. So, having been away from the computer for four days, I returned to find a backlog of—what was it?—something like 650,000 emails. And I can vouch, first-hand, that it really can take as long as 10 days to read carefully through 650,000 emails.
Let’s talk about a few realities.
I don’t use the term “rigged”; I use the term “corrupt.” The whole thing is corrupt and has been corrupt from Day One. Any honest litigator will confirm that the FBI found enough evidence during the first round to recommend convening a grand jury. In the expression “law and order,” the FBI are the police—the “order.” The Justice Department is the “law.” It is for the FBI to recommend and for the Justice Department to decide whether to follow. But here the entire process was corrupted. That meeting of Attorney-General Loretta Lynch with Bill Clinton, alone and isolated, in that plane on the Arizona tarmac, could not have been more outside the parameters of the law. It is absolutely forbidden for a person on the justice side to meet ex parte with an interested party under investigation. Indeed, the meeting was so clandestine that no one ever would have known they had met, except that a single reporter saw them. When they were caught, they added insult to injury by fabricating an explanation that they had been talking about grandchildren and golf. Even the least sophisticated political consumer would not believe that. Nor would a moron. So the process has been corrupt all along.
No one gives five people immunity the way that the FBI handed out these “Stay Out of Jail Free” cards. That is not how it works. The way it works in real life is this: The investigator takes two people who are in big trouble and privately tells each one that, if that person is willing to turn on the other, the investigator will give that person immunity. At the same time, the investigator adds that the other targeted person is now being visited in another room and being offered the same deal—and the first one who agrees to turn on the other will get the immunity deal. That is how and when immunity is conferred in the real world where the goal is justice, not politics. Only the Three Stooges or Marx Brothers would give both—or all five—immunity. It would be a comedy, satirizing the process for laughs. So the process was corrupt that way.
Comey’s assertion previously that no reasonable prosecutor would press the case forward with a grand jury was never believable. Hillary Clinton set up a secret server. She did it to hide official communications from the required official government channels. We can only guess as to why she did something so flagrantly illegal. Possible theories include but are not limited to these:
- President Obama wanted Sidney Blumenthal kept permanently out of the picture because Blumenthal had launched the rumor that Obama had not been born in America. But Hillary wanted to keep Blumenthal around. This way she could do so without Obama ever knowing.
- She is a psychologically troubled person and has a pathologically paranoid fear of people knowing what she is doing.
- She did not want errors of judgment, which all people inevitably make, to be documented and recorded for posterity.
- She was using the State Department in double-dealing to enrich herself through the Clinton Foundation, as she went from “flat broke” to becoming one of the richest people in the world, and she wanted to hide the activity and its extent from outside scrutiny.
- G-d knows what else.
Regardless of motive, her acts were a federal crime because the law does not turn on motive. I offer this insight as an historian. In addition to my rabbinic degree and law degree, I have an advanced degree in American history. As part of my graduate work, I did historical research into several areas of interest including but not limited to the failure of the Franklin Roosevelt Administration to help Jews in Germany and Poland during the 1930s and early 1940s, and I studied the efforts of President William Howard Taft to cancel all trade with czarist Russia until the Russians released a Jew they imprisoned who had American citizenship.
In both cases, I spent days in the library of the Columbia University School of International Affairs, where they house the complete collection of the communications of the United States State Department. As I recall, these communications, including the most top-secret exchanges between American ambassadors overseas and the State Department in Washington, get declassified after 25 or 50 years. These documents are a treasure trove for historians. And we historians believe that our field not only fascinates but also can help teach future generations lessons to be learned from past foibles and successes.
Understandably, American law requires all such State Department communications to be officially archived for such subsequent release. Hillary Clinton broke federal law by hiding such communications. In addition, every litigator knows that once documents are subpoenaed, the subpoenaed party has to turn them over, except for communications entailing attorney-client privilege, attorney work product, and proprietary corporate information (like a Coca-Cola formula or a Microsoft algorithm). Even those last types might have to be turned over, in part, depending on whether a court grants a protective order or a motion to compel production.
Consequently, once Clinton’s emails were subpoenaed, it violated fundamental laws of civil procedure in every American state and federal jurisdiction to destroy the subpoenaed emails unilaterally, not to mention 33,000 of them—even if they really were about yoga and Chelsea Clinton’s wedding. Indeed, if some emails regarding Chelsea’s wedding revealed that the Clinton Foundation was paying for the affair, in whole or in part, those mass deletions made that spoliation of evidence even more criminal. Martha Stewart and so many others have gone to prison for spoliation far less severe than that.
Moreover, the manner by which the Clinton emails were deleted adds to the apparent criminality. Experienced litigators know that deleted emails always can be recovered. The “deletion” does not really expunge or eviscerate the email but merely hides it within the computer’s memory from standard recovery.
However, experts know how to find deleted emails, and an entire forensic industry exists for just such purpose. Clinton’s team did something extraordinary that rarely occurs in the real world: they “bleached” the emails. No one does that unless they have extraordinary things to hide. No one bleaches emails regarding yoga classes or wedding plans—again, unless those plans reveal that money raised from hoodwinked charitable donors to help the poor of Haiti instead went to pay for such things as flowers, liquor, caterers, guest travel, orchestras, and photographers at Chelsea’s wedding. We do not know what was bleached or why, but we now know definitively from other sources that there was concern in the Clinton camp that there would be investigations into the use of Clinton Foundation funds for paying costs of Chelsea’s wedding and living expenses for 10 years.
So Comey’s original claim—that no reasonable prosecutor would convene a grand jury—was patently false. The only question was: Why would a person of such once-esteemed reputation take such a position?
- Had Comey been promised another four years in a Clinton Administration?
- Had Comey been promised a raise, a promotion?
- Had Comey been told that he would be fired if he did not play along?
And what was Loretta Lynch’s hand?
- Did she feel obliged to protect the Clintons because Bill had launched her career by naming her to a U.S. attorney position?
- Was she promised reappointment for four more years as attorney general under a Hillary administration?
- Was she promised appointment to become a lifetime Article III federal judge if Clinton would be elected?
In the abstract, none of this otherwise makes sense because, under any neutral legal principle, a grand jury should have been convened, shown evidence, and asked to determine whether an indictment is warranted. Instead, most or all key witnesses were granted immunity from prosecution, and the FBI head recommended that Lynch drop the case. The way Round One ended never has made sense.
When Round Two erupted during the late Anthony Weiner investigation, everything reeked of Comey trying to mollify those in rebellion and suffering demoralization within his agency over the initial Clinton Whitewash. By “reopening the investigation,” he seemed to demonstrate fairness and neutrality. However, he now came under withering criticism and attack from the Clinton side and the media who had praised him only weeks earlier.
The sudden announcement on Sunday that the FBI had completed its review of 650,000 emails in 10 days and arrived at a sophisticated legal determination reflects that Comey felt he had given everyone something, had angered everyone just enough, had demonstrated just enough neutrality, and he now needed to get out of the election crosshairs during the final 48 hours.
It is certain that Comey’s Sunday announcement will not impact the voting. There is not enough time—and he is sophisticated enough to know it—for either side to build momentum for a backlash.
For Hillary People, they already believe she is innocent, going back to Bernie Sanders’s politically suicidal gift to her: “I am sick of hearing about your damned emails.” They now simply feel validated.
For Trump People, they already believe the system is rigged or corrupt. They, too, now simply feel validated. For Millennials on the college campuses, they still don’t know the names “James Comey” or “Loretta Lynch.” Or as they might say: LOL.
The only real impact of the FBI’s brief resuscitation of the email investigation has been to staunch a politically perilous period when Donald Trump’s standing was declining in the aftermath of the terrible video. Thereafter, amid skyrocketing Obamacare premium increases, Trump’s strong third debate performance, and a last-minute return home by the Republican base, Comey’s brief resuscitation of the email probe made it easier for Trump’s team to change the narrative, for Trump to get locked on message, put Team Clinton on the defensive, and it changed the face of election polling in several purple and blue battleground states. Now, with fewer than 48 hours left to the election, it really is going down to the wire.
A week after the most exciting World Series closing night in decades, Comey has gifted Americans with a thrilling finish to the 2016 presidential election. And the only things required to make this dramatic excitement happen were: (1) severely tarnishing the reputation of the FBI, (2) revealing the extent of gross dishonesty and political corruption existing within the Justice Department, and (3) demonstrating to the American people that, despite everything we have been taught since elementary-school civics classes, our country really has two tiers of laws and justice: one set of rules for most of us, and a special platinum-tier of winks and exceptions for the powerful and elite, headed by the teflon Clintons who are above all laws.