Comey likely cost Clinton the election – and Giuliani could face criminal investigation

We all know that on Oct. 28, ten days before the election, FBI Director James Comey wrote a public letter to congress suggesting Hillary Clinton was still under FBI investigation for emails.  All her momentum after she won the last presidential debate on Oct. 19 was lost.  Instead, the media was filled with false charges by Mr. Trump and Rudy Giuliani that Comey’s letter proved that Clinton was a criminal.

Comey’s Nov. 4 letter, when he took it all back, came too late. In fact, it only made matters worse.  For the last four days through Election Day, Messrs. Trump and Giuliani and other Republican congressional leaders recklessly ignored Comey’s finding in his last letter and continued to accuse Clinton of being a criminal. 

{mosads}On Nov. 8, Trump won the election with 306 electoral votes (including Michigan) to 232 (including New Hampshire). But Hillary Clinton won the popular vote that current estimates say will be by a margin of almost 2 million voters after all votes are counted. Indeed, her total number of votes exceeding 61 million will mean she is the fourth or third largest vote getter as a presidential candidate in U.S. history.  

Clinton lost 46 electoral votes to Trump by razor-thin margins in three traditionally Democratic Midwestern states:  Pennsylvania (20 electoral votes) by 1.2%, or 68,000 votes; Michigan (16 electoral votes) by three-tenths of one percent, or 13,000 votes; and Wisconsin (10 electoral votes) by one percent, or 27,000 votes. 

In other words, a change of about one percent in Hillary Clinton’s favor in each of these three states would have resulted in Clinton’s election as president by an electoral vote margin of 278-260. 

We know from exit polls that significant numbers of voters made up their minds in the last week before Nov. 8.   Can there be any serious doubt that all the adverse media and the criminal cloud over Clinton created by the Comey’s Oct. 28 letter in the last ten days caused at least a one percent additional margin for Trump in these three crucial states? 

But Giuliani did more than recklessly misuse the Comey Oct. 28 letter and accuse Clinton of being a criminal during multiple national TV interviews.  On the morning of Nov. 4 on national TV, he went one step further and put himself at serious criminal risk. This is what he told a host on “Fox & Friends:” 

“I had expected this for the last, honestly, to tell you the truth, I thought it [a new development from the FBI Director] was going to be about three or four weeks ago…. I did nothing to get it out, I had no role in it.  Did I hear about it? You’re darn right I heard about it, and I can’t even repeat the language that I heard from the former FBI agents.” [Emphasis added]  

That sentence on Fox –“You’re darn right I heard about it, and I can’t even repeat the language that I heard from the Former FBI agents” — is a public admission that Mr. Giuliani could be a co-conspirator, along with the former and current FBI agents involved in the chain of leaks, to obstruct justice or to influence an official proceeding in violation of the criminal law, 18 U.S.C. 1512(c)(2).  We know that the FBI issued a warrant to review the Anthony Wiener lap top hard drive, and thus, this should be considered a “government proceeding” covered by this obstruction statute. 

Also, by their own words, it appears that such a proceeding was anticipated by Giuliani and the former and current FBI agent leakers. 

One thing is certain: Mr. Giuliani’s willingness to go on national TV and charge someone with criminal conduct is contrary to the core constitutional principles of due process and the presumption of innocence.  That alone should disqualify him to be U.S. Attorney General.

Only a special prosecutor would have the credibility to investigate Mr. Giuliani and these current and former FBI agents for being involved in possible criminal leaks and a conspiracy to obstruct justice. Until a complete investigation occurs, certainly Giuliani should not be confirmed for any Cabinet position – -including Secretary of State. 

Will Republican congressional oversight committees call Giuliani to testify and demand that he identify all FBI agents, whether former or present, who leaked information to him about an ongoing investigation before he is confirmed for any Cabinet position?  

Stay tuned.

Davis is co-founder of both the Washington law firm Davis Goldberg Galper PLLC and Trident DMG, a strategic media firm specializing in crisis management. He served as special counsel to former President Clinton from 1996 to 1998 and is a regular columnist for The Hill newspaper. He has been a friend of Hillary Clinton since they were students at Yale Law School together in 1969 and 1970.