“A Higher Loyalty: Truth, Lies and Leadership” by former FBI director James Comey has reignited the debate over whether Comey cost Hillary Clinton the 2016 presidential election.
As analyst Nate Silver of FiveThirtyEight concluded (not all pollsters agreed), “Hillary Clinton would probably be president if FBI director James Comey had not sent a letter to Congress on October 28.” That letter, of course, disclosed the existence of new emails apparently relevant to the FBI’s investigation of Clinton’s private email server just 11 days before the election.
Democrats should stop averting their eyes from an ugly truth they don’t want to talk about in public: There never would have been a Clinton email server investigation if there hadn’t been a Clinton email server.
{mosads}When Clinton became secretary of State, she set up a private email server in her home and used it for official business. When IT staffers at the State Department expressed concern, a department official told them “that the matter was not to be discussed any further” because there had been a legal review (there hadn’t). In the end, at least 30,000 emails concerning official business, some classified, were sent or received on her personal email server.
A subsequent investigation by the State Department inspector general found that Clinton had violated State Department policy and federal record retention regulations. Clinton argued that her five predecessors had done the same thing. In fact, most of them hadn’t. Secretary of State Colin Powell, for example, sent and received emails from a private laptop in his office at a time when the State Department directives on this practice were nowhere near as specific and robust as when Clinton was in office.
Clinton refused to be interviewed by the IG, whose report concluded that, had Clinton sought permission for her email server, it wouldn’t have been granted because of national security concerns. Eventually she apologized, which only established that, as has been said of the Clintons, they’d rather seek forgiveness than permission.
Unfathomably, in the minds of Democrats, Comey is the overarching villain. But Clinton and her supporters can scapegoat Comey for her loss only by ignoring the existence of the private email server — and the impossible circumstances that Comey found himself in.
In July 2016, Comey had publicly represented that the email server investigation had been closed without charges against Clinton. The discovery in October of the new emails left Comey with two options. One was marked “damned if you do.” He could supplement his testimony by disclosing the discovery of the new emails to Congress just days before the election and then face howls of outrage at the FBI from Democrats.
His other option was marked “damned if you don’t, which meant leaving the public with the continuing misimpression that the email server investigation was over. If Clinton had won the election, the Republicans would have howled with outrage at the FBI when the existence of the new emails inevitably became known.
Comey went with “damned if you do.” Donald Trump won, the howls came from the Democrats, and the wisdom of his choice will be debated forever.
In fairness, no one has written a playbook on how the FBI should deal with a potentially explosive development in a previously disclosed but now closed investigation of a major party presidential candidate in the last days of a presidential election. There is no evidence that Comey acted from partisan motives to help Trump win or that he thought disclosure would advance his career prospects. He knew that he was about to make half the country furious with him.
If Comey made a mistake in judgment under intense time pressure in unprecedented circumstances, as he credibly told George Stephanopoulos in his Sunday night ABC interview, he was trying to do “the right thing.”
Given the way Clinton went about it, can the same be said of her decision to install and maintain the private email server?
Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.