Will Hillary Clinton be Indicted?

I don’t know, but here are some tips for separating the signal from the noise about the email investigation. (Click here to see all of TLP’s 2016 election posts.)

FBI Director, former prosecutor, lifelong Republican, and contributor to McCain 2008 and Romney 2012 campaigns,  James Comey (Image: Charles Rex Arbogast / AP)
FBI Director, former prosecutor, lifelong Republican, and contributor to McCain 2008 and Romney 2012 campaigns, James Comey (Image: Charles Rex Arbogast / AP)

As I mentioned the other day, I really can’t keep up with detailed commentary right now about the 2016 election. Instead, I’m going to go for writing more single-serving pieces that share some of the heuristics I use to sort the signal from the noise while reading about the 2016 election. That’s a fancy way of saying: This is how and when I call “bullshit!”

One issue in the 2016 election that is either an occasional drip or, if you read the reactionary press, a constant deluge is the FBI investigation into then-Secretary Clinton’s use of a private email server. Today, I present to you the filters I use when reading or hearing about this investigation of Clinton’s unfortunate, yet entirely precedented, use of non-State Department email systems while she was Secretary of State.

Is this person obviously biased?

The first filter is the easiest to apply. Some folks who write and/or discuss this topic can be immediately dismissed as hacks, or at the very least biased beyond hope of having a valid opinion. For example, here is Tom DeLay (!) speaking to NewsMax TV (!!) in January:

“I have friends that are in the FBI and they tell me they’re ready to indict,” DeLay said on Newsmax TV’s “The Steve Malzberg Show” on Monday.

“They’re ready to recommend an indictment, and they also say that if the attorney general does not indict, they’re going public. So one way or another, either she’s going to be indicted and that process begins, or we try her in the public eye with her campaign,” he told the conservative news outlet. “One way or another, she’s going to have to face these charges.”

DeLay is a perfect example of the hopelessly biased, and crucial to ignore, kind of source of information about the email investigation. This is someone who is clearly describing their fantasy of what will happen to Clinton, rather than making an evidence-based case about what is most likely to happen. Don’t get me wrong, Tom DeLay knows about the indictment process, since he was indicted and then convicted of money laundering etc. in 2010. DeLay also knows about public figures getting away with crazy shit, since the jury’s conviction of DeLay was dismissed in 2013 by Texas (ahem) judges. (Also – remember this thing about DeLay having “friends that are in the FBI,” because it will be important later.)

The other easy way to spot one of these folks is that they refer to Clinton as a “felon” – which is a term that only applies to someone that has been convicted of a felony (e.g. Tom DeLay). When someone runs afoul of this filter, I simply stop reading. If it is in conversation, I either call bullshit or politely nod and change the subject, depending on the circumstances. Use your discernment!

Of course, not everyone is as obviously biased as Tom DeLay or your whacky Aunt who, right before asking you to pass the potatoes, casually declares Hillary Clinton murdered Vince Foster (she did not).

How is James Comey and/or the FBI described?

This is a bit trickier, because James Comey and the FBI, unlike DeLay or people writing for The Daily Caller, are not biased to the point of self-parody. Nonetheless, Director Comey and many of those who work for him at the FBI are still demonstrably biased even if not hopelessly so. I have noticed many folks who have a desire to obscure this fact when they write about the email investigation. Here is a description of Comey by Charles Lipson from an article on RealClearPolitics:

… FBI Director James Comey, an experienced prosecutor and consummate professional with some 100-150 agents investigating the Democratic front-runner, the Clinton Foundation, and (presumably) several of Hillary’s closest aides: Huma Abedin, Cheryl Mills, and Jake Sullivan.

A bit later, Lipson says of the FBI:

But the GOP is not leading the criminal investigation. The FBI is. The bureau is not partisan, and it is not on a witch hunt. Despite the obvious risks of investigating the presumptive Democratic nominee during a Democratic administration, its agents are sorting through mountains of evidence pointing to serious, deliberate crimes.

These claims are routine for a certain type of article about the email investigation, so let’s break them down a bit.

James Comey, it is true, is a professional. Whether or not you think he is a consummate professional probably depends on if you think the director of the FBI should be going around endorsing the so-called “Ferguson effect.” Writing in The Atlantic, Ta-Nahesi Coates, discusses Comey’s endorsement of this theory, which Comey repeated at least twice while simultaneously acknowledging there is no data to back it up (seriously! read the article). Coates describes this view (I think charitably) as “creationism, or crime-fighting on a hunch,” and offers an application of Comey’s view to a particular incident of police brutality:

It worth considering what manner of America Comey’s creationism would have us build. On Monday a black student in Columbia, South Carolina, refused to move out of her seat. She was then assaulted by a police officer. The officer then told the other students in the class, “I’ll put you in jail next.” The officer has been the subject of two civil-rights suits. In James Comey’s America, the actions of this officer are not recorded, and not scrutinized. The creationist style of crime control renders the beating of Marlene Pinnock invisible. Policing on a hunch allows that Walter Scott was resisting arrest and that his killer feared for his life. Indeed it asserts, implicitly, that Scott’s murder wasn’t the problem, so much as the fact that citizens saw it.

Comey’s views on policing are not the only reason to doubt his oft-vaunted independence, as OpenSecrets.org described back when Comey was first nominated by President Obama:

But Comey is even more thoroughly a Republican than many observers — even those steeped in the partisan ways of the nation’s capital — may realize.

A U.S. attorney for the Southern District of New York before his stint at DOJ, Comey worked extensively in the private sector afterward. He made stops at Bridgewater Associates, which was the biggest hedge fund in the nation in 2011, as well as Lockheed Martin. Political contributions from both organizations trend conservative, according to data from OpenSecrets.org, and Comey’s own donations to federal candidates over the last several years also went to Republicans.

In fact, the apparent nominee-to-be has contributed to Obama’s opponents in each of the past two elections. In August 2008, Comey sent $2,300 to the GOP presidential nominee, Sen. John McCain (Ariz.). A few years later, Comey did his part to try to prevent Obama’s re-election, maxing out to Republican Mitt Romneywith $5,000 in donations. Comey also gave $2,500 during that cycle to Susan Brooks (Ind.), a Republican with whom Comey had worked at DOJ. Brooks went on to win a House seat.

(Susan Brooks, by the way, is the congresswoman who printed out stacks of emails to confront Clinton with during her 11-hour marathon testimony before the – sixth? – House committee investigation Benghazi. Representative Brooks was disappointed to learn that most of the Secretary’s work was not conducted via email.)

So let’s be honest: James Comey is not just a Republican, he is a partisan Republican. I cannot predict exactly how Comey’s partisanship and biases will impact his decision-making process on recommending, or not, an indictment of Clinton. I can say that anyone who tries to obfuscate Comey’s partisanship, or who outright says it doesn’t exist, is not a fair broker of information on this topic. (Drinking game: when you read or hear about the investigation, take a drink every time Comey is described as “independent” or “universally respected” if you, ya know, want to be really drunk.)

Even more disturbing is the sense that Director Comey has become more outspokenly reactionary since his confirmation. If you want more, you can google and read more about some of his other high profile partisan statements made after he was confirmed for his 10-year term as Director.

As for the rest of the FBI – the fact that some of them are buddies with Tom DeLay and leaking information to him and/or the press already, makes it pretty clear that they are neither above politics nor behaving professionally. And statements people make regarding the FBI investigation of Clinton that rely on leaked – or sometimes imagined – information brings us to the last of my three filters on this topic.

Is this person playing chess with themselves?

I suck at chess. Not because I can’t see 10 moves ahead – I can! – but because the other player never does what I imagine them doing for those 10 moves. So when I catch myself gaming out a scenario in life – business, politics, parenting, whatever – without considering the possibility of me being surprised by the behavior of other parties, I stop. This observation applies to a whole lot of situations, assessing the veracity of an opinion on the email controversy very much included.

In the case of the FBI investigation into Clinton’s emails, there are a few indicators that someone is playing chess with themselves: they assert unproven allegations as established fact; they act as though an FBI recommendation of an indictment is as good as a conviction; they assume public opinion will be congruent with their own view of the situation. Going back to Lipson’s piece again, we can find all of these errors.

Lipson asserts an unproven assertion as fact, when it is based on insufficent data:

* Secretary Clinton specifically instructed aides to send her classified materials on that insecure network. We know of at least one such instruction. We don’t know how many others were redacted by the State Department.

What we know is that there was a fax, with talking points on it, that Clinton instructed an aide (Jake Sullivan) to send her via email if problems sending it via secure fax were not resolved. I honestly can’t find any information about whether the talking points were sent, if the talking points were classified or just being sent securely, or – and this is key – whether or not someone wanting to bypass an information bottleneck so that she can do her job is really something we should be indicting people for (establishing criminal intent is part of the indictment process, y’all). Also notice the language – “we know of at least one” – and ask yourself what the goal is of writing that way.

Lipson also writes as though an FBI recommendation to indict is as good as a conviction (in Lipson’s version, this is imagined in response to the Obama DoJ failing to act on that recommendation):

If insiders think the administration is engaged in a full-fledged cover-up, they will resign, led by Comey. They won’t go quietly. They will spill the beans. And two hours later, it won’t smell good.

Indeed, Lipson thinks even routine questioning will be enough to take Clinton out of the Presidential race:

So, will Abedin, Mills, or Sullivan answer fully and truthfully or invoke their Fifth Amendment rights? If they did, would it become known and hurt Hillary politically? If she refuses to testify herself, her political career is over. She won’t do that unless she fears indictment is certain, and she would have to drop out of the presidential race anyway.

This is – thank goodness – simply not how our justice system operates. Notice the presumption of guilt based on an exercise of 5th amendment rights – which is, you know, the whole thing the 5th amendment is there to protect us from. Contrary to opinion in reactionary right-wing circles, Hillary Clinton is a person and has constitutional protections just like the rest of us.

Lipson continues on imagining this all playing out as though everyone involved were going to do exactly what he would do:

If FBI Director Comey does recommend criminal charges, he will put DOJ and the White House in a very tight box. First, as a seasoned prosecutor, he will present only strong, winnable cases. Second, he won’t present one or two charges. He will present evidence of dozens and dozens of felonies. AG Lynch and her career attorneys won’t be able to say, “On the whole, there’s just not enough here to convict.” They will have to say that over and over, on each charge. Indictment on even a few felonies is a torpedo beneath the waterline for Clinton. Third, it is clear that CIA and FBI investigators already fear an administration whitewash and have leaked damaging information to the press.

(I like how FBI agents who can’t keep their investigations confidential are the people I should trust if they tell me someone else didn’t keep information confidential. But I digress.)

Actually, that is not a digression: Lipson repeatedly, seriously impugns the integrity of the FBI in his piece. The idea that these people are leaking information to influence public opinion before they have even concluded their investigation is scandalous. Is it happening? Yes, it is, but that doesn’t mean they are canny political operators – it means they are hacks. Keeping that in mind, here is an alternative set of predictions based on the same data:

  • James Comey et al. will decide they want a future in American politics and choose not to recommend an indictment of Democratic Presidential nomination frontrunner Hillary Clinton et al. in an election year for using non-secure email the same way the previous two email-using Secretaries of State did. Game over.
  • James Comey et al. recommend indictments, the DoJ says the recommendations are tainted by obvious bias (see: months of leaks) by the investigators, and either decides not to indict or delays a decision until after the election. In this case the matter would goto public opinion, where everybody who is going to care about it probably already does, and it doesn’t really matter because Donald Trump is still eating all the headline space anyway.
  • Director Comey does not recommend an indictment, over the objections of some investigators, who then quit and begin leaking even more information to the press. Like the previous hypothetical scenario, this would involve a battle for public opinion rather than an actual trial. Maybe the leaks sink Clinton, or maybe the FBI is discredited for a generation after all of the leaked accusations are debunked, and maybe a bunch of other things that I can’t even imagine happen.

And that is the whole point here: nobody knows what is going to happen. I find it somewhat alarming any time one type of press is writing about something a lot and another type of press isn’t. The mainstream press only writes about this when more info trickles out, but the reactionary right wing press is on about this all the time. Is it a non-issue, or a bomb waiting to go off? I don’t know, Charles Lipson doesn’t know, and neither does anybody else. We are all going to find out together! How exciting.

In the meantime, I guess a really short version of my sniff test for Clinton email stories would be: Don’t believe anybody who tells you they know what has, and what will, happen – because nobody does. (Also, read Vox’s explainer.)

Click here to see all of TLP’s 2016 election posts.

Tell us what you think! TLP wants to hear from you. Send an email, comment on Facebook, or tweet on Twitter. There is also Tumblr and the comment field below, if you’re into that kind of thing. 

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