Former President Bill Clinton is quick to apportion blame for his wife’s defeat.
“James Comey cost her the election,” Clinton was quoted telling a group of holiday shoppers during an impromptu chat in a Westchester County bookshop last week.
But he has yet to place any blame at all on an otherwise great man with a great fault who bears considerably more responsibility for Hillary Clinton’s loss.
That man is Bill Clinton himself. His great fault is one he shares with his wife; they too often act as if rules that apply to you or me do not apply to them.
In blaming Comey, Bill Clinton noted that “we were seven points up” before the FBI director made it known via a letter to Congress that the investigation into Hillary Clinton’s emails had been reopened.
Bill Clinton did not add that Comey had felt obliged to make the reopening public because he had previously felt obliged to make the initial closing of the investigation public.
And the reason Comey had made the initial closing public was that the rules do in fact apply to everybody.
One rule holds that the husband of the target of a criminal investigation should not seek to meet privately with the law enforcement official ultimately in charge of that same investigation, no matter how innocent the talk.
That did not stop Bill Clinton from striding across the tarmac to have a friendly chat with Attorney General Loretta Lynch when their planes happened to be parked near each other at the executive terminal at Sky Harbor airport in Phoenix on June 27.
“I did see President Clinton at the Phoenix airport as he was leaving, and he spoke to myself and my husband on the plane,” Lynch told the press afterward. “Our conversation was a great deal about grandchildren. It was primarily social and about our travels, and he mentioned golf he played in Phoenix.”
Word of the encounter nonetheless left Comey in an untenable situation. He had essentially come to the end of the investigation. The usual protocol called for him then to refer the findings to Department of Justice and let the prosecutors make the official determination.
What was anything but usual was that the top prosecutor had just been sitting on a plane with Bill Clinton. And for Lynch now to announce that Hillary Clinton had been cleared would call into question the integrity of all involved, including Comey and the FBI.
Had he been looking to make it easy on himself and hard on Hillary, Comey could have simply said that there was sufficient probable cause to proceed with a criminal case. He would have needed only to point to the nearly two dozen secret emails that had passed through her server.
But, in the words of one former FBI agent, Comey is “a unicorn in Washington; somebody who actually has ethics.” And he had come to the conclusion that while Hillary’s conduct had been egregiously careless, it lacked the intent necessary to support criminal charges.
Comey decided that he had to present the results directly to the public along with an explanation to dispel the appearance of impropriety as much as was possible. He did just that, making clear that he felt Hillary Clinton had been reckless and irresponsible, and that she had shown terrible judgment.
“We cannot find a case that would support bringing criminal charges on these facts,” Comey said. “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
What Comey could not have foreseen was that Anthony Weiner would get caught in another sexting scandal… and that this time it would involve a 15-year-old… and that FBI agents would end up securing a search warrant for the former congressman’s computer… and that its hard drive would prove to contain thousands of emails between his wife, Huma Amedin, and Hillary Clinton via the former secretary of State’s server.
These emails clearly had nothing to do with the Weiner sex crime investigation. But there was a possibility that they might pertain to the now-closed Hillary Clinton investigation.
Comey could hardly have just ignored the emails, even if he had been so inclined, which he most definitely was not. The only way he could check them was to reopen the investigation and secure a search warrant.
As has been noted in The Daily Beast, one problem for Comey was that the very agents who had been less than happy to see all their work on the Hillary case apparently come to naught when the case was closed in July would almost certainly be put back on it when it was revived. And one of those agents would be all but sure to tip off the press. There would no doubt have been talk of a cover-up on Hillary Clinton’s behalf.
Comey apparently decided that the only thing for him to do was announce that the investigation had been reopened the very way that he had earlier announced that it had been closed.
The result was the letter a fortnight before the election that Bill Clinton now blames for his wife’s defeat. He is right to say that Comey’s subsequent letter clearing Hillary Clinton on the Sunday before Election Day was too late to undo the damage.
But Bill Clinton fails to note that he himself is the one who made the initial letter—and therefore the others—necessary. Comey would never have felt obliged to go public in the first place had the great man with the great fault not decided that he was above a rule such as should have kept him from striding across the tarmac and boarding Lynch’s plane.
On her part, Lynch has accepted at least a modicum of responsibly for how it all played out.
“Well, I do regret sitting down and having a conversation with him, because it did give people concern,” she said on CNN on Sunday.
A reminder of how it might have played out came on Thursday with the unsealing of the FBI affidavit that accompanied the search warrant application for Weiner’s computer when the investigation was reopened.
The section of the sworn document headed “PROBABLE CAUSE FOR SEARCH” notes that of the 30,490 emails in Hillary Clinton’s server that were reviewed by the State Department, 2,115 were found to contain information that is presently classified. The affidavit reports that 65 of them were classified Secret and 22 classified Top Secret.
“The Secret level is significant because it means that the unauthorized disclosure of those emails could result in serious damage to national security,” the affidavit says. “The Top Secret level is significant because it means that the unauthorized disclosure of those emails could result in exceptionally grave damage to national security.”
That would certainly seem to have been enough probable cause for Comey if he had decided that a criminal case was warranted. He could have ended Hillary Clinton’s campaign back in July if he had been interested in changing the course of the election.
She got in trouble in the first place because she felt that the rules did not apply to her. She might still have won had her husband not felt the same.
And now we will all get a lesson of a whole other, unprecedented kind about what happens when rules do not apply in the person of Donald Trump.