For more than a year, Republicans have desperately hoped (and the mainstream media has suggested) that the “FBI primary” — the longstanding investigation in to her private email server, the information that went over it, and the Clinton Foundation and the tangled web of favor-trading that it weaves — would somehow damage Hillary Clinton so badly that she will lose in November notwithstanding the massive Democratic edge in the Electoral College. Whether that damage would flow from the Department of Justice convening a grand jury (which would probably cut off her misleading claim that she is not a “target”) or mere voter backlash against the steady drip-drip of one revealed lie after another is not clear. What is clear is that the Republican desperation for the indictment of Clinton is rising in proximity with the party’s anxiety over its own probable nominee.
The last day brings exciting news for such Republicans. First, it now appears that Clinton indeed sent at least one email marked “Classified.” While the marking does not in and of itself confer culpability — it is unlawful to misuse classified information whether or not it is marked — it does make it easier, perhaps decisively so, to argue that Clinton knew she was doing. And knowledge equals intent equals mens rea, the type of intent necessary to prove criminal culpability. Or so the argument goes. In any case, we know the email scandal is getting worse, because journals of the left are now on the case, even if from a confused point of view: “FBI criminal investigation emails: Clinton approved CIA drone assassinations with her cellphone, report says.” No doubt it took “CIA assassinations” to get Salon interested. Welcome aboard!
Then, ABC News reported that a patron of the Clinton Foundation — a stock operator, to use an old term — had been pushed on to a “sensitive government intelligence advisory board even though he had no obvious experience in the field, a decision that appeared to baffle the department’s professional staff.” Worse, newly available emails reveal an internal attempt to “protect the Secretary” from ABC’s original investigation of the matter back in 2011.
Anyway, it is not our purpose here to persuade the unpersuaded that Hillary is indeed a crook — if you do not believe it now, it is likely you are not open-minded to the possibility that she is, or that you simply do not care. Rather, it is to say that her opponents are not irrational to hope or even expect that the probable nominee of the Democratic Party will find herself in a heap of legal trouble before the fall.
On the partisan left, of course, this is all laughed away, most fashionably with a nervous cackle. The partisan right, however, is divided between those who still hold out hope, as it were, and the cynics, who believe that there is no chance that the Obama Department of Justice will not stretch prosecutorial discretion to its theoretical limit in order to avoid hurting Clinton’s chances. (There is, of course, no meaningful constituency on the right for the position that Hillary Clinton is of high character, and that this is all of a piece with the “vast right wing conspiracy,” revivified, or at least warmed over, from the 1990s.)
The cynical camp, which will attribute any current expansive deployment of executive power to the aggrandizement of Barack Obama, believes that the DOJ will block the prosecution of Hillary Clinton to protect Obama’s legacy. Here is an exemplary post from that point of view. Money quote:
Since his recent endorsement of Hillary for president, Obama has staked his entire legacy on her candidacy, and it becomes less likely that Joe Biden can be tapped to replace her. Hillary has the momentum, money, and organization, whereas Biden has none of these. If Obama’s legacy is going to survive, he needs to keep Hillary’s campaign alive.
The linked post goes on to propose that if the DOJ did move to prosecute Clinton, Obama might preemptively pardon her.
We are not in this corner of the cynical camp. In our view, Obama’s “legacy” is a secondary consideration, even for Obama. The far greater danger, at least in the minds of the Washington elite, is that Donald Trump becomes president of the United States.
Imagine, if you will, the bureaucratic dynamic that unfolds if the FBI submits findings to the Attorney General which argue strongly for the prosecution of Hillary Clinton on any of the aforementioned grounds. The Attorney General, if a partisan, could simply stonewall, and refuse to move forward. What is the FBI, or perhaps dissenters inside the DOJ’s professional staff, to do?
In an ordinary year with a perfectly respectable Republican nominee — say a Mitt Romney or John Kasich — the FBI would leak like a salad spinner and its director might resign in protest. Career lawyers within the Justice Department would complain to reporters. Cue shit storm, and substantial damage to Barack Obama’s legacy. That exact scenario happened during Watergate, and it was quite effective in taking down an actual president, much less a mere candidate.
The problem is, we suspect that even the principled professionals in the DOJ and the FBI shudder to contemplate a Trump presidency, and far fewer reporters will want the country’s blood on their hands, as they will see it, even if they could source such a story, write it, and get it past their editors. The “leak” deterrent, which would be the main reason a partisan Attorney General might think twice about stonewalling an FBI recommendation, will be inoperative with scary Donald Trump at the top of the opposition ticket.
Hillary Clinton should be very grateful that the GOP will nominate Trump. And, ironically, those among Trump’s supporters who believe that he has the greatest chance to beat Hillary may have neutralized the one thing that would definitely take her down.