As October surprises go, news that the FBI is reviving its investigation of Hillary Clinton is a bomblet, not a bombshell. In a letter to Congress, FBI Director James Comey reports that in the course of an inquiry in an unrelated case, new emails surfaced which “appear to be pertinent to the investigation” of Clinton’s private server and that his agency was taking steps to “determine whether they contain classified information, as well as to assess their importance” to the previously closed Clinton case. The unrelated case in question is reported by the New York Times to be an FBI inquiry into Anthony Weiner’s sexting practices.
Those riding in the locomotive of the Trump train are certain to seize on this story as a way of saving themselves from what appears to be an almost inexorable wreck. At his rallies, Trump has been hammering away on WikiLeaks revelations about the Clinton Foundation, but little has emerged from that source which directly involves Hillary herself. This news from the FBI, resurrecting the email scandal just as it had begun to fade, and with a salacious but not yet understood connection to Anthony Weiner, is far better fodder for Trump’s 11th hour electoral rescue attempt.
Already, Trump has tweeted “we must not let #CrookedHillary take her CRIMINAL SCHEME into the Oval Office,” and Republicans up and down the power scale are chiming in. House Speaker Paul Ryan has demanded that Hillary Clinton be denied further classified intelligence briefings of the kind that presidential candidates customarily enjoy.
Still, try as Trump and his acolytes might, this story alone is unlikely to change the near-term course of events. For one thing, according to one key clause in Comey’s letter to Congress: “the FBI cannot yet assess whether or not this material may be significant.” In another key clause, Comey writes: “I cannot predict how long it will take us to complete this additional work.”
One does not need to read between the lines here to learn the most important thing from these two caveats: The public is extremely unlikely to get any further official word from the FBI about this subject in the brief interval before Nov. 8. On its own, this latest twist in the email saga does not contain enough evidence — or any evidence — of Clinton malefaction, and therefore will not save Trump from disaster.
Indeed, even if the news had been much worse, with early voting already under way in swing states, with Clinton enjoying a sizable advantage in the polling averages, and with Donald Trump running the dumbest presidential campaign in modern history, she would probably be able — as one wag has quipped — to beat Trump from a prison cell.
Of course, a prison cell is exactly where Trump-functioning as prosecutor, judge, juror and executioner — has vowed to send Clinton should he win the election.
But if she wins, these additional emails are not likely to lead to that kind of dire result. Even if we make the hypothetical assumption that these emails contain additional highly sensitive classified documents, Comey has already made it plain that that fact alone would not warrant an FBI recommendation of prosecution for violating the statute punishing negligent handling of government secrets.
There is little doubt that Clinton violated that statute. But as Comey noted in July, all previous prosecutions under its terms involved “clearly intentional and willful mishandling of classified information” or exposing “vast quantities of materials…in such a way as to support an inference of intentional misconduct,” or “indications of disloyalty to the United States,” or “efforts to obstruct justice.”
The FBI found none of those things in its investigation of Clinton, which is why it decided not to recommend prosecution to the Department of Justice.
With new emails surfacing, it is conceivable that the FBI will now find evidence that those things were done. But judging by what Comey wrote to Congress in reopening the case, the bureau does not yet have anything pointing in that direction. All we can do is speculate in the dark, which team Trump will no doubt find to be a highly productive activity, but which more dispassionate Americans should regard as worthless.
Without a doubt, it is a terrible thing that on the eve of an election a candidate for the highest office in the land is undergoing an FBI investigation for actions which may have compromised government secrets, and which she herself has admitted were a mistake. It is, however, an even more terrible thing that she is running against an adversary who — through longstanding patterns of fraud in his business practices and an undeniable aversion to the rule of law in his public pronouncements — would be a catastrophe for the country, both as its chief law enforcement officer and as its commander in chief.
But whatever happens with the FBI investigation, as a political and not a legal matter, the most important issue is one of proportion.
Hillary’s foibles with her email server — even if things turn out to be significantly worse than they currently seem — are small beer compared to the extraordinarily big beer of the ignorance, bigotry and national-security recklessness that has emanated from the mouth of a man who is completely unsuited to wield the vast powers of the American presidency.
Schoenfeld is author of “Necessary Secrets: National Security, the Media and the Rule of Law.”