The perfect as the enemy of the good in the FBI’s investigation of Hillary

Here is my take on the state of play regarding Hillary Clinton’s use of a private email server while she was Secretary of State and the FBI’s investigation of the matter:

1. There’s a good chance that Hillary Clinton, the presumptive nominee of the Democratic Party, has committed a felony. And not just any felony, but a violation of the Espionage Act.

2. Given the consequences associated with a felon being nominated, or worse yet elected president, there is a strong national interest in a prompt determination by the government as to whether Clinton committed one or more felonies.

3. The inquiry under the Espionage Act is fairly straightforward. For example, under 18 U.S.C. Section 793(f), the questions as I see them are (1) whether Clinton had possession or control of documents relating to the national defense; (2) whether she removed such information from its proper place of custody and/or delivered it to someone in violation of her trust; and (3) whether she acted with gross negligence.

4. The facts needed to answer these questions appear to have been uncovered. The task now is to decide whether these facts fit the legal definition of the crimes in question.

5. The task may not be easy, but it shouldn’t require much new digging for facts. The FBI is therefore probably in a position to determine quite soon whether Clinton violated the Espionage Act.

6. However, there are some issues under investigation that perhaps can’t be resolved without further digging. For example, a complete investigation would decide who else at the State Department violated the Espionage Act. And as to Clinton, there may be other possible violations that depend on facts that have not fully been developed.

Do you see the problem? Items 1 and 2 militate strongly in favor of a quick resolution of the question whether Clinton violated the Espionage Act. Items 3-5 suggest that a quick resolution is possible. But Item 6 indicates that a complete investigation of the kind the FBI is trained to conduct may be impossible to complete prior to Clinton’s nomination and possibly even before her election (assuming she wins).

The potential problem exists even in the absence of bad faith or foot dragging by bureaucrats eager to help Clinton run out the clock. The FBI prides itself in conducting thorough investigations. It doesn’t want to be less than exhaustive when conducting a high profile investigation of a presidential contender. Thus, it naturally will be disinclined to rush. Its inclination will be to conduct a gold-plated investigation — to dot every “i” and cross every “t.”

To make matters worse, the Justice Department is looking over the FBI’s investigation and must approve any prosecution of Clinton. Here’s where the possibility of bad faith compounds the problem.

Justice Department lawyers can drag the process out by constantly asking new questions. The questions may be of interest; they may even be ones the FBI would answer if time were not of the essence. But answering them might well be unnecessary for purposes of determining whether Clinton violated the Espionage Act.

In any complex investigation, there are always loose ends. Attempting to tie them all up can tie an investigative agency in knots.

Given the need to determine sooner rather than later whether Hillary Clinton is a felon, it would be tragic if the FBI tied itself in knots going down every bunny trail associated with this matter. The perfect should not become the enemy of the good in an investigation of this urgency.

Yet there is reason to fear that it might.

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