Comey Can Nail Hillary - But Will He?

FBI Director James Comey probably holds the fate of the presumptive Democrat nominee, Hillary Clinton, in his hands, as his agency investigates her use of a private server for official government emails.  Whether Comey will handle the matter as a principled and honest policeman or as a conniving politician is the great unknown.  Leaks demonstrate either possibility, depending on how one evaluates them.  Comey’s actions so far, at least as reported through these leaks and some other slender reeds of information, suggest that he is either likely to do nothing, or go in for the kill. 

Comey, a Republican, worked for the Bush administration, but became a hero to many on the left for refusing to reauthorize a wiretap program while temporarily standing in for Attorney General John Ashcroft.  It was largely that act, and a rare attempt to demonstrate bipartisanship, that led President Obama give Comey the FBI in 2013.  Comey recently angered Obama by similarly refusing to toe the new party line when he attributed recent increases in criminal activity to hamstrung police forces, for which he apparently received a presidential rebuke.  On the other hand, the FBI under Comey also had a hand in investigating the IRS scandal and improbably found that nothing warranted filing federal criminal charges.  

These incidents may demonstrate that Comey is a man of principle, or that his rise and willingness to carry water for a far left Democrat administration are the actions of a clever and calculating politician.  Comey’s moves in the Clinton investigation are subject to either interpretation. 

Most of what we know about the investigation is the result of leaks, and like everything else, their significance depends on interpretation.  Are they a push-back against the administration and Clinton from high officials in the FBI to give it maneuvering room?  Or are the leaks from lower level career staffers, concerned that their boss will interfere with and frustrate an honest investigation?

The supposed broadening of the investigation might mean that the FBI is seriously gathering additional evidence, or that it is a ploy to drag out the investigation indefinitely -- or at least beyond the presidential election.  Giving weight to the latter interpretation is the fact that probable cause already exists that Hillary violated at two federal statutes (18 USC 793 and 18 USC 1924  ) that govern the handling of classified material, and that her defenses don’t hold legal water.  General David Petraeus pleaded guilty to the latter charge, and his actions were neither as extensive, nor as provable, nor as great a risk to national security as Clinton’s.  The charge under Section 793[f] is more serious, but harder to prove, as it requires proof of gross negligence, but among the leaks is one that suggests the FBI is focusing on this charge -- presumably because they don’t need anything more to prove a violation of Section 1924.  Sufficient evidence for an indictment is in the public record right now on either charge, and for the Section 1924 violation, I would even say proof beyond a reasonable doubt.  So unless the FBI is planning to pursue other charges, expanding the investigation might well be a gambit to destroy its focus and drag it out.   

But let’s assume that Comey is a man of principle who is pursuing the case honestly, and that the leaks are an attempt to give the agency some breathing space.  Then the broadening of the investigation is probably not only to firm up the evidence regarding Clinton’s already clear and existing violations of the law, but possibly to add a more devastating charge -- obstruction of justice.  

Comey knows that referring the case with charges only alleging violations of document mishandling will get nowhere in Loretta Lynch’s Justice Department.  Obama has publicly declared that he doesn’t believe that Hillary’s use of the email server impacted national security.  Comey has likely received similar information through more discreet channels, and he knows that Obama has successfully used the Justice Department and his own agency to kill legitimate investigations of the ATF and IRS.  And with Joe Biden out of the Democrat nominating race (with Obama’s blessing) the President is going to back and protect Clinton if he can do so without causing himself too much trouble.  

Were Comey to refer charges of mishandling classified material to Justice, even if Lynch does nothing, it would hurt Hillary, but would probably not kill her campaign.   Justice does have prosecutorial discretion.   Lynch and her attorneys will be able to come up with sufficient excuses -- national security was not demonstrably impacted, Hillary was careless but not grossly negligent, she didn’t realize classified items were classified at the time, and so on -- that they will make the refusal to indict sound at least plausible.  Yes, Hillary may have appeared to technically violate Section 1924, Justice will say, but that transgression did not rise to the level that a criminal indictment is warranted. 

Lynch and Obama easily will be able to make that case with a straight face, not just because they are practiced liars, but because violations (under Sections 793[f] or 1924) don’t involve specific criminal intent. Hillary will shamelessly say it is all just politics, as she always does, and move on. Democrats and low information independents will take a breath and go along.   Comey and the FBI will be more damaged than Clinton.  And if Clinton wins the presidency despite an FBI referral, things will be grim for Comey and his agency. 

If you strike the king, kill him, the old saying goes.  So if Comey is principled and has any intention of referring charges to Justice, he needs more than the document mishandling charges.  Thus, the expansion of the investigation, to Hillary’s aides, and to the computer specialists and companies that not only set up the server, but also aided in the deletion of emails, is predictable and necessary.  There is already a lot of smoke in this regard, most notably that Clinton’s former top IT man, Bryan Pagliano, asserted his 5th Amendment rights before Congress earlier this year.  Pagliano followed Clinton to the State Department, but maintained the server at her home as a private employee.  His dual role may well make him the lynchpin of an obstruction charge. 

Of course, in the IRS case Lois Lerner asserted the 5th and got away with it, without the FBI or Justice forcing her to testify in return for a grant of immunity.  But politically, this case is a little different, since while the IRS case struck directly at the President, this one strikes directly only at a presidential contender. 

Republican senators have debated offering Pagliano immunity, but (typically) have done nothing. If Comey demands that Justice grant Pagliano immunity for his testimony, or others potentially involved in removing evidence or obstructing the investigation, it will be hard for Lynch to refuse without appearing to be obstructing justice herself.  And remember, Obama’s public pronouncement in defense of Hillary was only as to the national security element of the document handling, not to obstructing justice.  Comey may believe that a thorough investigation might recover documents from the wiped server, including personal emails, that along with carefully compiled additional circumstantial evidence, would allow him to take a very strong case to Justice for obstruction of justice, even if Hillary’s aides and helpmates don’t turn on her.  It would be difficult for Justice to ignore an FBI referral for obstruction, and even if it declined to indict, that would still badly hurt Hillary’s presidential hopes. 

Hillary, who worked as a junior Congressional staffer during the Watergate hearings, knows that the cover-up is usually worse than the crime, which is why the Clinton gang follows a code of omerta, backed by blandishments and coercion that would make a don blush.  Getting her on obstruction will be tough, but doable.  If that is what Comey is up to, Hillary may finally get what’s coming to her.  But that assumes that Comey really is a principled guy.  We shall see.

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