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Comey and the Classified(?) Emails: An Imperfect Guide to the Perplexed
Peter 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.
Published in Law
The Congress can impeach the President for whatever charges it makes as long as the votes are there, no?
And further different for Hillary, or so I have come to understand.
It can’t be. The Constitution mentions impeachment six times and never differentiates between crimes by the President or any other federal office.
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”
“Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
“The President shall be Commander in Chief… and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
That is the totality of impeachment references in the Constitution. It poses no limits to crimes committed within the office. How silly would it be if you couldn’t remove a president for treason committed before assuming office?
It is not clear to me that a pardon of Clinton by Obama for all crimes committed to date avoids an impeachment process after becoming President. The impeachment process seems completely separate and distinct from the judicial system and a precedent action in one does not affect the other. For example, an official may be impeached and removed from office as a result, and then be subject to trial by the judiciary for the same acts as the impeachment.
I believe you are correct. Impeachment is nothing more than a declaration by Congress that a person is unfit for office and removed. Remember the Democrats found Alcee Hastings unfit to be a federal judge but welcomed him with open arms once he was elected to the House.
Hastings appealed his conviction in the Senate because it wasn’t done by the full body but by a committee. The courts held that no other branch can dictate to the Senate its own procedures.
Well, maybe I misheard Napolitano this morning and I haven’t yet seen a video of this morning’s session with the “Legs Show” excuse me Outnumbered on Fox but I recall him saying that she couldn’t be impeached. Now, I could have misheard what he said or maybe he meant to say that the likelihood of impeachment was essentially nil since a grand jury to date hasn’t been convened and no formal charges of wrongdoing have been brought on Clinton in a court of law, making Congress’ job that much more difficult. And I’m much happier with EJ’s Constitutional references.
I would hope that Congress would impeach, don’t get me wrong — but it would certainly help if evidence comes to light that’s irrefutable that Clinton committed felonies. Hopefully, that’s what Comey and team came across in this new email trove which forced his hand to notify Congress. Let’s all hope that’s the case.
Currently, even though there’s clear and compelling evidence that Clinton lied under oath to Congress, the DoJ still won’t pursue those charges.
And after the election, one wonders if the DoJ will work with a compliant judge to seal the evidence that’s on the Weiner/Abedin laptop. My guess is that if that happens, Congress has a righteous fit and it gets ugly and triggers a constitutional crisis and that at some point the Supremes take the case.
Okay, here’s where I heard the impeachment interpretation on Fox. It was from Gregg Jarrett not Napolitano (watch the video linked):
Comey needs to do his job. That’s all. And I am still waiting for the Clinton Foundation to be investigated. But Obama will pardon Hillary and her staff the days following the election.
If Hillary and her staff have committed felonies that are confirmed by an act of pardon, why would Obama do that when it makes it appear that he condones their actions? Also, it looks as if Comey is threading the needle effectively. If there has been any pay-for-play by Hillary Clinton when she was SoS, that can be dealt with through impeachment if she is elected and by the legal system otherwise.
The ballots have been printed and advance voting began weeks ago. She won’t withdraw; the Democrats could not name a replacement now due to the facts listed in my first sentence.
I shall be waiting—holding my breath!—for the WaPo, the NYT (“a former newspaper”), NPR et al to declare themselves bitterly, bitterly disappointed in Hillary, and perhaps express just a little annoyance that the DNC foisted this dreadful candidate upon them, and a smidge of humble acknowledgement that maybe they were a little too eager to overlook her manifold ethical flaws and cover for her crimes.
I look forward to long editorials declaring “Nada Mas! Nada Mas! Honesty! Integrity! shall be our watchwords going forward!”
Well, okay. Maybe I won’t actually hold my breath. Maybe I’ll just wait.
Or…not.
Sigh.
I don’t think Obama has any problem issuing pardon(s). The MSM will not raise any fuss & Obama will just say he is only diffusing the politics and allowing HRC to assume the Presidency (or retire) unemcumbered. If she is not indicted before the end of his term he will do it before he leaves as her reward for her loyalty. Ditto on the Clinton Foundation which is where the biggest scandal really is.
Kate,
THE PARTY OF NO SHAME.
Regards,
Jim
And the Dems are intent to “break the glass ceiling” with the likes of this creature, HRC?
“I’m With Her” the 21st century version of Icarus’ wax wings.
This would have been a lot simpler and quicker if Ms. Clinton had turned over the server. Or, barring that, had provided an electronic copy of the emails rather than paper copies. But she didn’t want to make it easy to search them before, and now she does?
Me, too. At this point, I just want to know the truth, even if it doesn’t derail the presidency of HRH…er, I mean, HRC.
Thanks for the explanation of the whole email maze…at least, the maze thus far.
Two things I wonder about/dread: When are they going to release the cache of emails from Hillary herself, and when are we going to know the “why” of all this? Why just Hillary’s emails? Why not the GOP too?
I would imagine there are lots of nervous people in DC these days.
I can’t envision any scenario where Wikileaks et al or any lefty smear artists would continue sitting on embarrassing emails involving Republicans, now that voting has started. Ergo, they got nothin’.
Let’s not go living Constitution here.
The Pardon Power is unlimited. We might all agree tradition and practice involve mercy. But it’s not mentioned anywhere. Can a President pardon herself? I think yes. And I suspect the USSC would have a difficult time finding a constructional provision to rule otherwise. Besides, who would have standing to sue Hillary over a pardon she issued to herself. We can’t even get clearly lawless actions reviewed because of the standing doctrine.
I think the chances of Obama issuing Hillary a pardon are very high. If she wins and we get clear and convincing evidence she committed some offense, Obama can likely explain it away as some technical violation and he just needs to clear the decks.
If Trump wins, Obama is going to have to pardon her, even if there is no clear evidence, because it will be investigated and there won’t be anymore gifts of immunity.
Come to think of it, I’m almost 100% convinced there is a pardon in her future.
This creature doesn’t need to completely break the glass ceiling; snails and slugs can crawl up the walls to the ceiling and crawl along the ceiling itself. Their slime can protect them from sharp objects like broken glass and razor blades.
Truly amazing animals. They’re simultaneous hermaphrodites, among other things.
Well and good. None of this speaks to the impeachment process if HRC is elected. That will tell a story in itself if elected congressional Democrats remain in lockstep with an ongoing criminal enterprise.
Something I think we should keep putting front and center in any discussion of actions being taken by the FBI or others just before an election.
I ran out of space.
If any of the newly uncovered emails conflict with information given in statements to the FBI by HRC, we have lying to the FBI and Obstruction of Justice by HRC. That’s all that’s needed here to put Comey on solid ground.
I think we learned an important lesson the last time we impeached a Clinton. Only Presidents who are unpopular have a chance of being removed from office. Nixon in 1974 unpopular
To successfully remove Hillary from office we need three elements. First, clear and convincing evidence she committed a crime. I won’t detail it, other than to say we would know it when we see it.
Second we need control of the House. Last and most important, a political climate where Senate Democrats feared more for their own futures being tied to a 100 ton boat anchor, than supporting Hillary.
Agree. But this is the only path after pardon for removal until next election.
One more question. Do you think HRC would actually be a popular sitting President or are our elected Democrats overwhelmed by the machine?
No problem. If she wins, Obama can pardon her, then she pardons him. If she loses, he can still pardon her but probably a lot of quid as a charitable donation from the Clinton Foundation will be needed for that kind of quo.
I think what’s forbidden is the power to pardon someone who has been impeached. Keeping in mind that pardons apply to crimes, impeachment and removal from office are political acts. The remedy, removal from office and a prohibition on holding any other office.
From what I remember of 17th century British history, impeachment of the King’s officers was common. Not an every day occurrence, but unremarkable. This was a method to remove actual miscreants, but also a way the King’s opponents could flex their muscles. I make the leap from there to the restriction on the President. If the legislature, the “popular” branch, votes to defenestrate a presidential appointee, it wouldn’t do to give the President the power to nullify that choice.