Actually, Comey had good reason to announce the Clinton email probe wasn't over

Now that James Comey is on a book tour trashing President Trump, it’s easy to forget that for most of last year the left was furious with him. Indeed, despite his current trashing of Trump, many on the left are still furious with him. They believe his announcement, 10-days before the election, that the probe into Hillary Clinton’s email server wasn’t quite over derailed her campaign. The consensus view, endorsed by Hillary in public appearances and in her book “What Happened,” is that if Comey hadn’t made that one decision, she’d have won the election.

Part of the lingering anger at Comey comes from the sense that he should never have made the statement in the first place. It was an inexplicable bit of freelancing, maybe even an abuse of power. But is that really true? Today, Rolling Stone published a piece based on Comey’s recent interview with ABC News which argues Comey has a pretty strong case that he made a reasonable decision given the potential significance of the cache of emails discovered on Anthony Weiner’s laptop.

The reason that the FBI did not recommend felony prosecution…is that investigators never found “a smoking gun,” Comey says. They lacked an email or other record that established criminal intent – perhaps a warning to Clinton that she shouldn’t use a private server or any “indication of her obstructing justice.” Absent such a damning piece of evidence, there was no precedent to prosecute. And so, in a decision that became the president’s pretext for his firing, Comey staged a press conference in July of 2016 denouncing Clinton’s carelessness in risking classified information, even as he let her off the hook, as a criminal matter.

Of course, as we’ve argued here at Hot Air several times, it’s not clear that Comey couldn’t have charged Clinton anyway. The statute in question doesn’t require an intent to harm national security, just “gross negligence.” But putting that aside for the moment, even looking at this as Comey did at the time, i.e. Clinton was just a confused grandma who didn’t know better, all it would take to undercut her innocence is one email showing she’d been warned or was aware what she was doing was wrong. On October 27th, there was no way for Comey to know whether or not that one email might turn up in the cache discovered on Weiner’s laptop. From the ABC News transcript:

So we’re now less than two weeks from the election. The deputy director emailed me at about 5:30 in the morning and said, “The midyear team,” which was the code-name for the Clinton email investigation, “needs to meet with you.”

And it’s unusual to email me at 5:30 in the morning. And so I arranged to meet with the team. And I walked in with a stupid smile on my face, I think, and said, “The band is back together.” ‘Cause they were sitting in the same seats they’d sat in so many times.

And I didn’t smile again for a long time like that — after that. And what they told me was, “We have found, for reasons we can’t explain, hundreds of thousands of Hillary Clinton’s emails on Anthony Weiner’s laptop. And something much more important than that. Thousands of emails from Hillary Clinton’s Blackberry domain.”

She used a Blackberry for the first three months or so of her tenure as secretary of State before setting up the personal server in the basement. And the reason that matters so much is, if there was gonna be a smoking gun, where Hillary Clinton was told, “Don’t do this,” or, “This is improper,” it’s highly likely to be at the beginning.

And we never found those emails. And so now they’re telling me, “For reasons we can’t explain, thousands of those Blackberry emails are on Anthony Weiner’s laptop.” And so I said, “Okay. We gotta go get ‘em. How fast can you review these?” And the answer was, “We can’t possibly finish before the election because we have to read tens of thousands of emails.

We can’t ask recruits to come in and review them because you have to know the context.” And so I’m sitting there on the morning of October 27th, they’re telling me there’s material that may change the conclusion in this case. We all agree, including the Department of Justice, we’ve gotta get a search warrant to go get these.

And then the question for me now is, “So what do we do now?” Remember the– the standard is, the norm is, “If you can avoid it, you take no action that might have an impact on an election.” And I’m sitting there, on the morning of October 27th, and I can’t see a door that’s labeled, “No action here.” I can only see two doors, and they’re both actions. One says, “Speak,” the other says, “Conceal”–

At this point in the transcript, George Stephanopoulos tries to argue with Comey suggesting he could have stayed quiet until he knew whether or not there was something important in the newly discovered emails, but Comey rejects that:

Well, we know there are hundreds of thousands of Hillary Clinton’s emails there, including Blackberry emails. And so there is reason to believe that this is evidence in our case, and may change the result. And so maybe what you do is gamble and say, “I’ll be quiet about it,” but that comes back to my doors.

That’s an affirmative act of concealment, right? Because I’ve told Congress and the American people– the whole point of July 5th was transparency. “Look, American people, what we’ve done. We did it carefully, we did it well. There’s no there there.

You can take that to the bank. You can rely on the FBI. We’re done. Everybody can get on with their lives.” It’s October 27th, that’s not true anymore, in potentially a huge way. So you could speak about it, or you could not speak about it. But the not speaking about it is an action.

It really could have been there. And if it had been, the FBI might well have reversed course and recommended that the DOJ prosecute Clinton for mishandling classified information. Here’s the conclusion from Rolling Stone:

In short: the decision to reopen the investigation may not line up with the spin that it was a mop-up exercise or preening due-diligence, where the FBI was sorting through likely innocuous emails they’d probably already seen before. The bureau had uncovered, thanks to Weiner’s perversions, a new cache of emails from the critical period before Clinton began mishandling classified information that could demonstrate what Comey calls “corrupt intent” and reverse the recommendation not to prosecute.

It seems to me a lot of Clinton’s defenders start from the presumption that, of course, there was nothing to this, and therefore the outcome seems foreordained to them. Meanwhile, Clinton critics (myself included) suspect she knew all along that she was stretching the boundaries of what was legal but was either a) smart enough not to talk about it on email or b) deleted those incriminating emails when her attorneys sorted through them. But there was some genuine jeopardy for her here and Comey’s decision highlights that fact.

Frankly, I suspect the only way Clinton was going to get caught for this was for the FBI to charge her close advisers, including Cheryl Mills, and get them to flip on her. Mills served Clinton during her tenure as Secretary of State and once Clinton left office immediately became her attorney again. During her FBI interview, Mills claimed she wasn’t aware of Clinton’s private server until after she left office. In other words, any conversations she had with Clinton about the server were privileged attorney-client communication. As the Daily Caller‘s Chuck Ross pointed out last year, there was evidence that wasn’t true.

A review of those documents conducted by The Daily Caller shows that Mills and Abedin told Strzok and Laufman that they were not aware of Clinton’s server until after she left the State Department…

But undercutting those denials are email exchanges in which both Mills and Abedin either directly discussed or were involved in discussing Clinton’s server.

“hrc email coming back — is server okay?” Mills asked in a Feb. 27, 2010 email to Abedin and Justin Cooper, a longtime aide to Bill Clinton who helped set up the Clinton server.

Why wasn’t Mills charged with lying to the FBI? Comey brushed off that question when asked saying sometimes people misremember things. Well, yeah, especially when they’re lying.

Bringing this back around to Comey, he approached this case with one hand tied behind his back. He could have gone after Mills (or Abedin) and tried to make them flip on Clinton. He could have recommended charging her based on gross negligence. Instead, he held out for a smoking gun email. Even though he gave her every chance to escape accountability, he’s still being blamed for her loss.