LONDON – Last Tuesday, presumptive Democratic nominee Hillary Clinton got an almost-certain reprieve from the potential criminal prosecution that’s been hanging over her head since the news broke about her using a private email server for official business when she was secretary of state. FBI Director James Comey, in a carefully worded statement, announced the bureau’s view that “no charges are appropriate in this case.” Absent the slim chance that Justice Department prosecutors will reject the FBI recommendation, Clinton is home free, criminal jeopardy-wise.
But was that the end of the Clinton email scandal? Nope.
Clinton’s political opponents and enemies won’t let the controversy go. And Comey’s statement has given them no reason to do so. Instead, it virtually guarantees that the Clinton email affair will take up residence in the land of zombie scandals that hover between life and death because they never come to a definitive conclusion.
Comey left no doubt of his opinion that Clinton behaved shoddily, with scant awareness of — let alone respect for — the rules and concerns of government. He left the impression that Clinton acted in this case just as many people think the Clintons have often behaved in the past: Avoiding the extreme sanction of criminal prosecution yet leaving little doubt that really distasteful behavior had taken place.
This is, to say the least, a real problem for Clinton. While the FBI investigation was going on, she had reason to hope that the agency’s verdict would discredit the idea of “Crooked Hillary,” as touted by presumptive Republican nominee Donald Trump. But that’s not what happened. The FBI left her in a kind of reputational limbo.
How does she run for president from a position like that? Does she defend herself — insisting, for example, that there was almost no difference between the way you treated classified information and the way your predecessors treated it? Does she try to go the FBI one better, filling in the blanks that remained in Comey’s account? Does she go on the offensive, pointing out that your opponent’s ethnical shortcomings make you look like a veritable Snow White?
Or does she let it ride; counting on the ebb and flow of campaign politics to wash away the bad smell left by Comey’s report? The case for letting it ride is fairly simple to state. For most people, the central question in the email controversy was whether Clinton would be indicted. That has been settled. So these people aren’t consumed by the finer points of the case and can walk away.
There’s also the matter of timing. Over the summer, the email controversy will fade in significance, and what’s left of it will have to compete for attention with fresh events in the endless campaign.
Clinton herself has begun creating some of these events — making news with the start of a campaign tour with President Barack Obama. And, of course, there will be the succession of eruptions that Trump will not be able to resist producing. So, it’s easy enough to see how the email scandal’s political insignificance could evaporate.
The case against doing nothing is more complicated. For one thing, there’s going to be a lot of partisan energy driving the controversy. Trump has already issued the opening tweets in his offensive: “The system is rigged,” he says, and, “FBI director said Crooked Hillary compromised our national security. No charges. Wow!” Republican House Speaker Paul Ryan declared that Comey’s statement “defies explanation.” Republican National Committee Chairman Reince Priebus tweeted: “Gross negligence = blatant indifference to one’s legal duty.” Almost every GOP or conservative public figure seems to have piled on and they’ll keep working it.
Outside of what used to be called the Republican elite, reactions are and will be much darker. Posts tagged #Shorter Comey mocked the FBI director’s long report: “If a little person did this, the government would destroy her. But this is Hillary. Punt.” And another: “Hillary lied, broke laws & is incompetent but we are just corrupt enough to let her get away with it.”
These are the people who think that the fix is in — that former President Bill Clinton’s airport meeting with Attorney General Loretta Lynch wasn’t an accident. It’s a part of the signaling system, they insist, that has repeatedly kept the Clintons out of jail. Democrats close to the Clinton campaign, the “New York Times” has reported, say she’s considering keeping Lynch on as attorney general if she wins. With friends like that. …
But — here is the crux of the problem — this view gets its ammunition not just from Bill Clinton’s gregarious airplane habits but from what Comey himself said. His careful statement was positively dripping with disapproval of what the former secretary of state had done.
Here is one example: Comey noted that there are probably work-related Clinton emails that the FBI still doesn’t have, because the Clinton people “deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.”
Comey said the FBI nonetheless has “reasonable confidence there was no intentional misconduct.” But after giving a very specific explanation of why your confidence on this point might be just a little shaky, he gave no specific explanation for why the FBI’s confidence was reasonable.
Or, take Comey’s discussion of whether Clinton’s email was hacked. Clinton “used her personal e-mail extensively outside the United States,” he said, including “the territory of sophisticated adversaries.” Thus, hacking by “hostile actors” was “possible.” Possible? The facts Comey laid out make it far more than probable.
Finally, there was Comey’s overall verdict on Clinton’s conduct. After reciting the fact that “gross negligence” toward classified information could constitute a violation of law, he said, “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws …” (note the word “clear,” implying that there was indeed some evidence of such intent), “they were extremely careless in their handling of very sensitive, highly classified information.” For some of this information, “any reasonable person in Secretary Clinton’s position … should have known that an unclassified system was no place for that conversation.”
Comey did not explain how Clinton’s “extreme carelessness” differed from “gross negligence.” It is inconceivable that the people who helped him draft his very careful statement failed to point this gap out to him. He may have recommended against charging Clinton; but, politically speaking, he hung her out to dry. With an impression like this, it may not be enough to let things ride.
Ironically, it may be that Clinton won’t be able to shake the impression that Comey left unless she wins the presidency in spite of it and gives an excellent account of herself there.
Suzanne Garment, a lawyer, is the author of “Scandal: The Culture of Mistrust in American Politics.”
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