Observations on the FBI’s Clinton email “reentry”

Now this is an October surprise. Having declared the FBI’s investigation into the Clinton email scandal closed, Director Comey has reopened it 11 days before the presidential election.

You would think this means that the FBI found something truly significant. Comey is attuned to politics. He understands the political significance of reopening the investigation at this time. Presumably, he wouldn’t reopen it if the FBI hadn’t found something very important.

But what could it have found? The way Comey has misinterpreted the requirements for criminal liability under the Espionage Act and other statutes, it seems almost impossible that newly found documents could change his position that Hillary Clinton committed no crime.

Did the FBI find more classified documents? Probably, but so what? It had already discovered plenty that Hillary sent and received. The sticking point, for purposes of criminal liability, was intent. What could the FBI have found in Huma Abedin’s email that would change Comey’s view on Hillary’s intent? It’s difficult to say.

It seems more likely that the newly discovered documents raise issues as to possible criminal liability by Abedin. John has discussed the possibility that the FBI now has strong evidence that Abedin committed perjury.

But if Abedin is the FBI’s target, it seems odd that Comey would announce a reopening of the investigation so close to the election. Abedin is not a candidate, and there will be ample time to explore her status after the election. Moreover, there is insufficient time to resolve it beforehand.

There are three related reasons why Comey would nonetheless reopen the investigation now. First, he may have been under intense pressure from within his agency to do so.

Second, he may have wanted to insulate himself from criticism for taking sides. Imagine the abuse Comey would have taken if he had waited until after the election to reopen the investigation. Imagine the fallout if FBI agents or officials leaked word that Comey was waiting until after the election to investigate.

Third, it may be that Comey is trying to fashion some sort of compromise in the way his agency presents this scandal to voters. His initial approach had compromise written all over it: Don’t throw the FBI’s weight into the election so strongly as to indict the Democratic nominee for president, but provide voters with damning facts uncovered in the investigation — something the FBI almost never does in a case where there is no indictment.

Now, Comey may feel that, though there has been no indictment of Clinton (and probably won’t be), voters should understand that there are still loose ends. The existence of the loose ends should not be revealed only after the election has occurred.

John Podesta is calling for Comey to lay his cards on the table before the election. Either he’s convinced that Comey won’t, and wants to score points against the Director, or he’s convinced that the new evidence isn’t centered around Clinton (or, if it is, contains nothing that can’t be spun).

Will Comey comply with Podesta’s call? I don’t know. But it may be that Comey wants the election to occur under a cloud of ambiguity. I’m pretty sure that, given the decision not to indict Clinton, that’s now the preference of many in the FBI.

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