The squishy fallout from Clinton's FBI interview

The historic candidacy of Hillary Clinton became even more historic yesterday when the former Secretary of State became the first major party candidate for the presidency to be interviewed by the FBI as the subject of a potential criminal investigation. As expected, we don’t know any more today than we did 24 hours ago, since nobody – including Clinton herself – is providing any specifics as to what took place during the meeting. That’s going to fuel a temporary banquet of speculation in the political media world, but it may be short lived since we appear to be nearing the end of this long and twisted tale.

For her part, Clinton released yet another statement saying she was “pleased to have the opportunity to assist the department in bringing its review to a conclusion.” It’s a theme she’s adopted from the beginning, insisting that this was all a “security review” rather than a criminal case, despite the fact that James Comey himself went on record earlier this year saying he had no idea what she was talking about and that the FBI conducts criminal investigations.

She certainly sounds like someone who knows that she’s off the hook and there’s a good chance that she has reason to be optimistic. (More on that in a moment.) But some, including Anita Kumar at McClatchy, still think that this matter has damaged her politically no matter what happens next.

No matter how the FBI investigation into the handling of sensitive information on Hillary Clinton’s personal computer server ends, it likely will hurt her presidential bid.

If she is indicted, she will face further questions about her honesty and perhaps even calls for her to step aside. If she isn’t indicted, as many legal experts predict, critics will accuse the Obama administration of letting her escape charges merely because they want her to win the White House.

Clinton was interviewed by the FBI Saturday for three-and-half hours at its headquarters in Washington, according to her campaign, suggesting the inquiry is nearing its end.

In some long bygone era I might have agreed with Kumar on this. There was a time when neither party would even consider nominating someone who was being looked at by the feds in a criminal investigation, but those rules no longer seem to apply. The Clintons have been embroiled in scandals and controversy for so long that it seems to be baked into the cake. Further, the electorate is so divided along partisan lines that conservatives will never trust Hillary Clinton no matter what the outcome and the Democrats won’t abandon her unless she’s actually locked in a cell somewhere, leaving her unavailable to show up for the swearing in ceremony. (It’s all a Vast Right Wing Conspiracy you know.)

Of course, we won’t know for sure until James Comey delivers the goods, but what conclusion has he reached? My friend Doug Mataconis sees a path for Comey to bail out of this mess without calling for an indictment.

[M]y suspicion is that unless the Bureau was able to uncover evidence that material that was actually marked classified was exchanged and stored on the server and that Clinton or other users were aware of that fact or can be shown to have taken steps to strip classification language from the material to mask its classified nature, then it’s unlikely that we’ll see any indictments here. It’s true that someone in Clinton’s position, as well as her aides, is responsible for protecting the integrity of classified information even if it isn’t marked as such, it is obviously much harder to prove knowledge and intent in those cases than it would be with information already marked classified. Additionally, the Bureau and the Justice Department are no doubt well aware of the possible impact indictments could have on the political climate, as such one suspects that they are going to be reluctant to recommend action unless there is clear evidence of knowing wrongdoing by Clinton or someone working for her. Whether any such evidence exists is something we cannot know at this point.

Unfortunately, I have to agree with Doug. There’s room in the interpretation of the events for the FBI to determine that they simply wouldn’t be able to bring Clinton in successfully for a conviction and the pressure to not damage Clinton’s election chances must be incredible. The media coverage following this meeting has been almost universal in concluding that the FBI won’t seek any charges. This could be read in a few ways, including the possibility that everyone is still shooting from the hip with no clear idea, but not wanting to do any more damage to Clinton’s campaign with messy speculation. But far more likely, at least in my opinion, is the same idea I was pondering earlier this week. The final outcome – at least in general terms – was probably known in Comey’s office well before they interviewed Clinton herself and word of whether it was a thumbs up or thumbs down has probably already made its way to Loretta Lynch’s office.

If the Attorney General knows that there won’t be a recommendation to prosecute, then it was far easier for Lynch to say she “fully expects” to accept Comey’s findings. Assuming that subject was covered during her secret meeting on the tarmac with Bill, Hillary may have gone into the interview knowing she was pretty much in the clear. And her comments about “bringing this review to a conclusion” probably reinforces that idea.

And yet I still have to wonder if Comey can simply walk away after all this. He’s got to be looking at what appear to be blatant violations of Section 1924 of Title 18 because the “unauthorized removal and retention of classified documents or material” seems so obvious. I doubt he’d take it so far as to drag in the Espionage Act, even though the “gross negligence” resulting in “the loss, theft or removal of classified information” would seem to be in play. But if he’s not confident he can get a conviction, does he want to dump that entire meal on his own plate?

The conventions begin soon and I have the feeling that we’ll know before they kick off. If Comey shocks us all and pushes for an indictment, things could become very, very interesting in Philadelphia. But put me down on the record as saying I highly doubt it at this point. The Clintons operate under a different set of rules than the rest of us.

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