Comey and the Classified(?) Emails: An Imperfect Guide to the Perplexed

 

tdy_andrea_hillary_150305Peter Robinson has asked a question that is on everyone’s mind. Should the FBI be required to release the Huma Abedin/Anthony Weiner emails? The answer to that question is no.

There are at least two serious difficulties. The first is that out of the cache of over 650,000 emails, only some fraction of them is relevant. The ones that are unrelated to the Hillary Clinton server are obviously out of bounds. But the more difficult issue is that the FBI cannot release those emails that are classified without creating some serious national security complications.

The same is true, moreover, for Hillary Clinton and Huma Abedin, assuming that they still have these emails in their possession. They could surely release them if they contained no classified information. But they surely cannot release these emails if they do contain classified information.

But by the same token, they cannot say that they refuse to release them because they contain classified information: that admission would be evidence enough that they illegally shared information, which would be grounds for the prosecution of both women. Abedin should not have had access those emails and Clinton should not have shared them with her, unless Abedin had the requisite security clearance, which it seems she did not. Indeed, right now Clinton could well be caught in a lie if the number of emails found on the Abedin/Weiner computer exceeds the pitifully small number of emails that Clinton acknowledges she sent over her private server.

At this point, the Clinton campaign has only one alternative, which is to excoriate James Comey for sending a notice to Congress that he was reopening the Clinton investigation based on new information. But what were the alternatives? Surely he could not just release that information if it contained classified documents. But could he have conducted the investigation in secret until the matter was resolved? Yes, but what would be the reaction if the investigation was made public only after Clinton wins the election, at which point some irate voters at least will be miffed that they were not given that information before hand?

Worse still, and this could easily happen, the President-elect will come to office while saddled with a major ongoing criminal investigation. In addition, if Comey does not release this information, it could come out anyhow, for someone could leak the fact of the new investigation, putting Comey in the uncomfortable position of explaining why he concealed it in the first place.

Another alternative is to kill the investigation altogether, which apparently is what people in the Justice Department have urged. But this only points out yet another difficulty in public administration. It is very difficult to play catch-up. It does take much knowledge to realize that Comey had engaged in a major whitewash of Clinton when he recommended against prosecution in his July 5, 2016 message, which offered, to say the least, an utterly unconvincing explanation for shutting down the entire investigation. Indeed, the difficulty goes back further, for the question is why did Comey slow-walk the entire investigation when he had sufficient evidence to go forward as early as March 2015 to recommend charges be filed against her?

Nor is there any reason to think the surprises will stop coming either before or after the investigation. In all likelihood, there are many foreign governments and perhaps many private parties who were able to gain access to the Clinton homebrew server. Any one of them at any time could dump more information that will be impossible to ignore. No one knows what that information will be, but it is certain to embarrass both Clinton and the United States, and perhaps compromise our allies as well.

The early evidence seems to be that the simple fact of the existence of unexplained emails on her private server is hurting her in the upcoming elections, as well it should. Even some one with her undeniable political skills may not be able to survive the maelstrom that is sure to envelop her in the days to come. Pity she will never withdraw.

There are 59 comments.

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  1. Founder

    Thanks for that, Richard–as always, you gave me an education. Now that I’ve got you, may I ask one follow-on question? The Clinton campaign and its surrogates in the press–which is to say, nearly everyone but the Wall Street Journal, Fox News, and Ricochet–is now demanding of James Comey that he release…something. As you’ve just made clear, Comey simply cannot release the emails.

    Is there anything he can release? Might he write another, longer letter to Congress, perhaps, explaining–well, explaining, again, something?

    In other words, Richard, if you were James Comey, bound to respect both the electoral process and the integrity of an ongoing investigation, what would you do now?

    • #1
    • October 31, 2016 at 9:34 am
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  2. Coolidge

    Richard Epstein: “

    “Pity she will never withdraw.”

    What then? (If she withdraws) What becomes of the Democrat presidential ticket?

    • #2
    • October 31, 2016 at 9:36 am
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  3. Inactive

    Richard Epstein: Indeed, right now Clinton could well be caught in a lie if the number of emails found on the Abedin/Weiner computer exceeds the pitifully small number of emails that Clinton acknowledges she sent over her private server.

    What would happen if the FBI said something like this (providing of course that it were true):

    “examination of metadata of the Weinermails revealed a number of emails that appeared to have been on or originated from Secretary Clinton’s private email server and the metadata of which does not match that of any of the emails so far provided by Secretary Clinton and her attorneys in response to Congressional and other subpoenas.”

    • #3
    • October 31, 2016 at 9:40 am
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  4. Member

    Trink:

    Richard Epstein: “

    “Pity she will never withdraw.”

    What then? (If she withdraws) What becomes of the Democrat presidential ticket?

    I would rate SMOD more likely than Hillary’s withdrawal. It would also upset the Washington Post a bit less.

    • #4
    • October 31, 2016 at 9:44 am
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  5. Coolidge

    “Even some one with her undeniable political skills may not be able to survive the maelstrom that is sure to envelop her in the days to come. Pity she will never withdraw.”

    Why do people think she has great political skills? Her own aides think she has poor judgement, and she has to be one of the worst candidates ever put forth by a major party. If it weren’t for Bill would anyone have ever heard of her?

    • #5
    • October 31, 2016 at 9:47 am
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  6. Inactive

    Richard Epstein: at which point some irate voters at least will be miffed that they were not given that information before hand?

    Has anyone ever used “miffed” to describe something so explosive?

    • #6
    • October 31, 2016 at 9:48 am
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  7. Member

    Yes, but…can Comey release to Congress unclassified documents that may point to Clinton’s and Abedin’s intent to obstruct justice and circumvent standing secrecy and espionage laws and statutes? Or unclassified emails that may show that Clinton, Abedin and others committed perjury or lied to the FBI?

    Surely Congressional oversight committees can subpoena the FBI right now for any emails that are deemed not classified and make determinations themselves on possibility illegality.

    Thoughts?

    • #7
    • October 31, 2016 at 9:52 am
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  8. Member

    What if there is damaging information about Hillary in the emails that is unrelated to classified material? Can it be released? Will it come out?

    • #8
    • October 31, 2016 at 9:52 am
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  9. Thatcher

    Richard,

    This is the whole point. Hillary Clinton, the Secretary of State of the United States didn’t and doesn’t give a damn about National Security. She compromised National Security for the express purpose of conducting her illegal slush fund operation and fraudulently ripping off the country in Bernie Madoff proportions.

    Is it surprising that she could care less about National Security now? Getting between Hillary and votes is like grabbing a junkyard dog’s bone. A rabid junkyard dog.

    Regards,

    Jim

    • #9
    • October 31, 2016 at 9:56 am
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  10. Coolidge

    Is it possible/likely that Obama will pardon Hillary? Could she pardon herself once she is inaugurated?

    • #10
    • October 31, 2016 at 9:56 am
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  11. Member

    Peter Robinson, If I were James Comey, I would have Richard write or edit his reply. I think Hillary is backed into a corner, and offensive tactics come natural to her. She is buying time, like a week’s worth. Then it will be an old story, yada, yada, yada.

    • #11
    • October 31, 2016 at 9:59 am
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  12. Member

    Richard Epstein: Abedin should not have had access those emails and Clinton should not have shared them with her, unless Abedin had the requisite security clearance, which it seems she did not.

    This alone is just plain mind exploding. I can’t even begin to process this.

    The entire private-server story is one of cavalier carelessness and irresponsibility on the part of Hillary Rodham Clinton.

    That’s before I get to whether she broke any laws.

    • #12
    • October 31, 2016 at 10:05 am
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  13. Member

    Trink:

    Richard Epstein: “

    “Pity she will never withdraw.”

    What then? (If she withdraws) What becomes of the Democrat presidential ticket?

    I am also wondering what kind of immunity she gets if she is elected. This was a big issue with Bill Clinton when he was in office. I just can’t remember how it played out. There were some charges that couldn’t be brought until he was out of office.

    Also it is a big deal for Congress to ask a president to testify because of the separation of powers.

    What I’m seeing going forward is a person who could be elected but not able to serve.

    This would truly be the unstable government that our forefathers hoped we’d never have.

    This is a nightmare.

    • #13
    • October 31, 2016 at 10:09 am
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  14. Member

    We have reached a point where a very flawed candidate should for the good of the country be persuaded to step down. Even the most partisan Democrats will shortly see has no future but for angst and derision even if she wins the election. She will be an albatross.

    • #14
    • October 31, 2016 at 10:09 am
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  15. Member

    The only bright spot: I am looking so very much forward to James Lileks’ next segue for SaneBox.

    • #15
    • October 31, 2016 at 10:16 am
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  16. Inactive

    Trink:

    Richard Epstein: “

    “Pity she will never withdraw.”

    What then? (If she withdraws) What becomes of the Democrat presidential ticket?

    That’s my only issue. Couldn’t care less what happens to Satan. If the election is upended now, after voting is already underway, then Trump will have a lot of trouble on his hands trying to prove he won the election fairly. It’s not his doing, but the lawyers will take over the country for over a year, I’ll bet. Soros has already directed his accountants to create a new expense line item for the fight.

    • #16
    • October 31, 2016 at 10:17 am
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  17. Podcaster

    I will reiterate points made in other threads:

    1. To save herself Hillary will gladly throw Huma under the bus. The Clintons did it to Web Hubble and they did it to the McDougalls. Loyalty is a one way street with them.

    2. This only came to light because someone with 2 ounces of integrity in the NY field office probably threatened to leak the existence of these emails to the Post.

    • #17
    • October 31, 2016 at 10:20 am
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  18. Inactive

    Four things.
    First, Weiner’s computer is not Hillary’s server. Whatever is on it will not fully reflect what Hillary deleted. The case against her, however, turns on whether it gives evidence that she destroyed government documents and classified information that she was obligated by law to preserve. If she did, that is crime one.

    Second, as Richard mentioned, was Clinton sharing classified information with Huma that was out of her clearance? If the answer is yes, Crime two.

    Third, does what is on Weiner’s computer confirm or refute testimony she has given under oath? If there is evidence of blatantly contradictory testimony, crime three.

    Fourth, and this is critically important, if Obama pardons Clinton so she can assume the Presidency, it is likely to touch off a serious Constitutional Crisis if SCOTUS doesn’t step in quickly. Can he do it, yes. He can pardon everyone involved. If he does, there will be hell to pay.

    The pardon is supposed to be used as an act of mercy, to release the unjustly imprisoned or shorten unjust sentences. In politics, it is a chance to be forgiven for wrongdoing and live out one’s life away from the public arena. The power of the Presidential Pardon is NOT a tool that allows the Executive Branch to violate the nations laws with impunity, and preserve its hold on political power. That would be an extreme abuse of the privilege. That message needs to get to the President.

    • #18
    • October 31, 2016 at 10:29 am
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  19. Member

    Apparently there are higher priorities of law than an informed voting populace. I am uncomfortable with this notion. There is a lot riding on the outcome of this quadrennial vote that supersede criminal prosecution, well to my unlawyered mind at least. Disclosure to the voting public seems paramount.

    • #19
    • October 31, 2016 at 10:35 am
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  20. Podcaster

    Big Ern: Second, as Richard mentioned, was Clinton sharing classified information with Huma that was out of her clearance? If the answer is yes, Crime two.

    It’s not just Huma. Obviously Carlos Danger had access and no clearance. Plus, God only knows what kind of security nightmare that laptop is. Can you imagine the places and links he clicks on?

    • #20
    • October 31, 2016 at 10:40 am
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  21. Member

    Trink:

    Richard Epstein: “

    “Pity she will never withdraw.”

    What then? (If she withdraws) What becomes of the Democrat presidential ticket?

    It goes up in a smoke of litigation until the end of the world. Because lets be honest if you are Trump or the Republicans would you not sue to have the Democratic ticket declared invalid. I would. So her backing out would not serve her at all and I think would probably make an even bigger mess for the Dems. Really the decent thing would be she stays on and if she wins she resigns. That would be a smooth transition.

    • #21
    • October 31, 2016 at 10:41 am
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  22. Member

    EJHill:

    Big Ern: Second, as Richard mentioned, was Clinton sharing classified information with Huma that was out of her clearance? If the answer is yes, Crime two.

    It’s not just Huma. Obviously Carlos Danger had access and no clearance. Plus, God only knows what kind of security nightmare that laptop is. Can you imagine the places and links he clicks on?

    Well based on what we know about Clinton and her server and devices she used to connect to that server his lap top is not any worse.

    • #22
    • October 31, 2016 at 10:44 am
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  23. Member

    Look at the turmoil Wikileaks has caused by releasing the e-mails it has hacked.

    That potential has existed the entire time HRC was secretary of state.

    If I needed no other proof that what she did was the height of irresponsibility, it is in the story itself of Wikileaks.

    No wonder Putin is building up its military show-of-force this month.

    We look stupid to the entire world, and worst of all to our enemies.

    • #23
    • October 31, 2016 at 11:05 am
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  24. Coolidge

    MarciN: This is a nightmare.

    Some lawyer on Fox said she could actually pardon herself!!!

    • #24
    • October 31, 2016 at 11:14 am
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  25. Podcaster

    Trink: Some lawyer on Fox said she could actually pardon herself!!!

    The Constitution doesn’t allow it. It specifically denies it cases of impeachment.

    • #25
    • October 31, 2016 at 11:46 am
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  26. Member

    Trink:

    MarciN: This is a nightmare.

    Some lawyer on Fox said she could actually pardon herself!!!

    That’s interesting. That’s probably why GW refused to pardon Scooter Libby.

    I am very nervous for the state of our nation today. I’ve seen a lot of political scandals over the course of my adult life, but this one rises above all of them in some ways.

    • #26
    • October 31, 2016 at 11:46 am
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  27. Member

    EJHill:

    Trink: Some lawyer on Fox said she could actually pardon herself!!!

    The Constitution doesn’t allow it. It specifically denies it cases of impeachment.

    So, I believe Judge Napolitano stated this morning that Hillary cannot be impeached for unlawful actions she engaged in prior to becoming President if elected. She can only be impeached for high crimes and misdemeanors while serving as President. However, that doesn’t mean that Congress can’t continue to investigate her plethora of illegal acts as Secretary of State throughout her presidency.

    I’m waiting for that televised interview of an FBI agent or two in dark silhouette with their voices altered describing in detail the corruption that the AG and Obama were engaged in to quash the investigation in both the email matter and the Clinton Foundation. If Clinton is elected that may be the best that I can hope for.

    • #27
    • October 31, 2016 at 11:55 am
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  28. Member

    Big Ern: The pardon is supposed to be used as an act of mercy, to release the unjustly imprisoned or shorten unjust sentences. In politics, it is a chance to be forgiven for wrongdoing and live out one’s life away from the public arena. The power of the Presidential Pardon is NOT a tool that allows the Executive Branch to violate the nations laws with impunity, and preserve its hold on political power. That would be an extreme abuse of the privilege. That message needs to get to the President.

    Ford’s pardon of Nixon is the most famous of these involving players at this level. And that pardon was granted long after Nixon had resigned the Presidency. If talk of pardon is serious in the minds of Democrats or the President, a removal of Clinton from candidacy would seem to be appropriate.

    • #28
    • October 31, 2016 at 12:04 pm
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  29. Podcaster

    Brian Watt: So, I believe Judge Napolitano stated this morning that Hillary cannot be impeached for unlawful actions she engaged in prior to becoming President if elected.

    Not true. In 1912 the House impeached and the Senate convicted Judge Robert W. Archbold for crimes he committed in federal offices previously held to the one in which he was sitting.

    • #29
    • October 31, 2016 at 12:07 pm
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  30. Member

    EJHill:

    Brian Watt: So, I believe Judge Napolitano stated this morning that Hillary cannot be impeached for unlawful actions she engaged in prior to becoming President if elected.

    Not true. In 1912 the House impeached and the Senate convicted Judge Robert W. Archbold for crimes he committed in federal offices previously held to the one in which he was sitting.

    I think it’s different for POTUS.

    • #30
    • October 31, 2016 at 12:08 pm
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