Perhaps it was her orange pantsuit that so many lampooned or Trump’s constant mantra of “lock her up,” but Hillary Clinton appears to be auditioning for the new season of “Orange Is The New Black.” Clinton recently complained that former FBI director James Comey “did shiv me, yeah.” The shiv in this case was the letter on the reopening of its investigation into Clinton’s emails that Comey sent to Congress 11 days before the presidential election last year, a letter that she blames for costing her the win. Clinton’s reliance on the Comey letter is dubious at best.
Ironically, it was Comey’s earlier press conference closing the Clinton probe that has raised the greatest ethical issues. In comparison to her other self-inflicted wounds, the October letter was a shiv short of a viable excuse for Clinton’s defeat. Clinton’s gritty reference of being shanked on the political prison yard is only the latest addition to a long list of causes other than herself for a disastrous defeat.
{mosads}Many believe that Clinton was the worst possible candidate and perhaps the only major figure that could have lost to Trump. In an election that was expected to be the most anti-establishment in history, Democratic leaders engineered the nomination for the ultimate establishment figure and a politician with record negative polling, even before the email scandal.
Clinton then magnified those problems with what many voters viewed as a thoroughly unauthentic demeanor and tendency toward evasion. On issues ranging from her still undisclosed Wall Street speeches to her past legal controversies to her email scandal, Clinton continually changed her rationales and deflected responsibility. After the election, Clinton alternatively blamed sexism, racism, self-hating women, domineering boyfriends, Russian hackers, Bernie Sanders, and of course, James Comey.
From a legal perspective, it was fascinating to see Clinton select the October letter as opposed to the press conference in July 2016. The focus of most of the criticism of Comey has been this press conference, where he cleared Clinton after a one-year investigation into their email scandal while also criticizing Clinton’s handling of sensitive and classified information.
Comey noted that the actions of Clinton and her staff were “extremely careless in their handling of very sensitive, highly classified information” and that the emails did include classified information, including “top secret” information. He declared that “there is evidence of potential violations of the statutes regarding the handling of classified information,” but he did not view the case as worthy of prosecution. He further acknowledged that his press conference was irregular, but “in this case, given the importance of the matter, I think unusual transparency is in order.”
Comey’s clearing of Clinton was used by her campaign to argue that the matter was closed not just legally but politically. However, others remained deeply disturbed by the press conference. Deputy Attorney General Rod Rosenstein cited the press conference in his letter calling for Trump to fire Comey. Rosenstein said that Comey’s references to Clinton were “derogatory” and “a textbook example of what federal prosecutors and agents are taught not to do.”
In comparison, Comey’s letter on Oct. 28, 2016 was far less problematic. Congress was actively investigating the email scandal and has coordinated congressional investigations with the Justice Department. Congress asked Comey (and he had agreed) to let the committees know if the status of the investigation changed. Moreover, Comey had previously testified that the investigation was closed. Accordingly, he wrote to inform Congress of the status change while stating that there has been no determination on the significance of the new information or whether it would change the prior conclusions. It did not. On Nov. 6, 2016, the FBI declared that the new information did not alter its earlier conclusions in closing the investigation.
It is important to note that, if the October information was a “shiv,” it was a shiv that Clinton and her staff effectively made themselves. The October letter was triggered by undisclosed files that were found on the computer of Anthony Weiner, the husband of close Clinton aide Huma Abedin and was under investigation as a sex offender. The late discovery was the byproduct to the reckless handling of the emails and the failure of the Clinton team to collect and turn over such evidence. While professing cooperation with federal authorities, Clinton and her staff were slow to appear for interviews and turning over evidence.
They refused to be interviewed by State Department investigators trying to determine if there was a national security breach. They then delayed handing over key computers and information until they were given immunity deals from the FBI. Had the Clintons and their staff been truly transparent and cooperative from the outset, all of this information would have been known to the FBI and the matter likely put to rest before the July press conference. Instead, in a signature Clinton strategy, they were too clever by half.
They ended up prolonging the scandal through changing accounts and withholding information. In my view, Comey would have been better to hold back from sending that letter given the close election date. However, it is really the July press conference that is the focus of those looking at Comey’s possible misconduct as director. There likely would have been little need for the October letter if Comey had not held the earlier press conference and made his ill-advised public statements.
In the end, Comey both helped and hurt Clinton. The letter was unlikely a serious game changer in the election. The problem is that the polls show that many voters were put off by Clinton herself and not her emails. Describing Comey’s status letter as a “shiv” does little to improve Clinton’s position. All of the colorful rhetoric in the world will not retroactively create a plausible reason for Clinton losing the election, other than herself. Worse yet, most voters have long lost interest in the past or current problems facing Clinton. As explained by Red in “Orange Is The New Black,” “All problems are boring until they’re your own.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.