The Clinton E-Mails: The Political versus the Legal Issues: Why she is not a crook

FBI Director Comey’s letter to Congress regarding Hillary Clinton’s emails is a political but not a

legal big deal.  While its political impact is already being seen and its final impact is potentially significant, legally what Comey said and what is likely to come of it is no big deal.  This of course raises the question, why did he do it and what impact will it have?

First why did Comey do it?  Some see a sinister political motive here.  Claims that the Bill Clinton’s  visit with the attorney general on the tarmac lead to a deal to squash prosecution.  This is the conspiracy thesis.  Comey’s letter to Congress is political payback, with him recognizing that he does not keep his job if Clinton is president.  Maybe.  But a more probable theory is that Comey did it to protect the FBI budget.  Congressional Republicans were angry with the decision not to charge Clinton and they were making noise about budgetary retaliation.   This letter might be no more than  organizational politics, and less personal animus or sabotage directed at Clinton.     Now consider the legal issues here. First note that the FBI did not say it was reactivating the criminal investigation against Clinton.  It discovered new emails on a computer owned by Clinton’s top aide in connection with a criminal investigation into her estranged husband’s sexting.  There is no indication as of now there are any classified e-mails here.  Legally nothing has changed here.

But more importantly, even if the FBI finds classified e-mails, it still does not change the legal game.  There are several possible laws that Clinton could have potentially broke, of which only  one is a criminal law.  The main criminal law--Section 1924 of Title 18 of the U.S. Crimes and Criminal Procedure Code–is the most relevant.    Here is what that law says.

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

The critical part of this law is the emphasis on the words “knowingly” and “intent.”  Why is this important?  Criminal law requires the proving of two elements to establish guilt: actus reus and mens rea.  Actus Reus refers to the showing that one factually did a specific thing–such as physically take something–whereas mens rea requires proof of some level of intent.  With the exception of a very few regulatory crimes, there are no strict liability criminal laws in the US.  One has to show some level or type of intentionality to establish guilt, and this proof has to be beyond a reasonable doubt, with the presumption being innocent until proven guilty.

The reason why this is important is that Director Comey had already concluded that in FBI’s  questioning of Clinton she did not intend to deceive.  Moreover, there is no evidence that there was intentionality or knowingly on the part of Clinton that would establish that she violated 18 USC § 1924.  The same would be true of any other alleged criminal violations such as those for perjury and false swearing.   For example, 18 U.S. Code § 793--Gathering, transmitting or losing defense information–states it is “illegal for any person with “the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States.”  This law requires a very specific intent–to bring about harm to the US.  Clinton may be a lot of things but under no circumstances can one argue she is a traitor or wishes to intentionally bring hard to the United States.

The broader point here is that first there is no indication that Comey’s evaluation of new emails is reopening the Clinton criminal investigation.  Second, among the several laws she possibly could have violated, only a few are criminal.  Third, there is no indication that any new emails would likely change anything in terms of establishing the mens rea necessary to establish criminal liability.  In short, the legal situation of Clinton has not changed at all since Friday.

But turning to politics, coming 11 days before the presidential election this story impacted the Clinton campaign in several ways.  While Clinton had appeared to be opening up a near insurmountable lead in national aggregate and swing state polls, and the likes of the NY Times and FiveThirtyEight had just about declared the race over, there were signs even before Friday that she was beginning to slip in the polls.  Some sites claimed she had already lost eight points in the last week, but there are many reasons to discount this big erosion given polling margins of errors and the inclusion of  outlier polls.  Clinton had a lead that was built less out of how good she had been campaigning but more out of how bad Trump had been since the first debate.    Clinton was falling again into over-confidence, and failing to realize the volatility of her support given her still high negatives.

The Comey letter freezes her momentum.  It takes away her narrative and the focus on Trump’s sexual behavior and puts spotlight again on her character.  Clinton is now again in a defensive mode, one that may be difficult to reverse and the Clinton camp knows that; that is why they are so angry.

Potentially this story does not matter.  Lots of people have early voted.  But the early voters are those who made up their mind to vote and for whom.  The battle all along has been to move swing voters and mobilize the base.   Trump’s road to victory is heavy mobilization of his base, dispirit Clinton’s, and discourage swing or marginal voters from showing up for the former Secretary of State.  The new email story re-energizes the Trump base and it may discourage the marginal Clinton supporters and swings from voting.  The election will be won or lost by the remaining 5% or so of the voters who are deciding if and how they will vote.  Early voting may not be great enough to offset how this final 5% decides.

Trump is right: The election is rigged — but in his favor

Today’s blog originally appeared in the Hill.

October 19, 2016, 10:48 am
Trump is right: The election is rigged — but in his favor
By David A. Schultz, contributor

Donald Trump is right that the election is rigged, but he’s right for all the wrong reasons. It’s rigged by race, class, and gender in ways that favor individuals such as Trump.


Doug Chapin and Lawrence R. Jacobs recently argued correctly in a Contributors piece in The Hill that election administration is fair and for the most part its administrators are competent and impartial. The days are gone when Lyndon Johnson won his 1948 Texas state election by having the dead vote for him in alphabetical order. This is not where elections are rigged now.
If elections can be rigged, either party can do it. The secretary of state (or commonwealth) is the chief election officer in each state and they would have the ability to manipulate the election system to the benefit of their favored candidate.


Of the 50 states, 28 are Republican. Among the 11 swing states that are Colorado, Florida, Iowa, Ohio, Nevada, New Hampshire, New Mexico, North Carolina,  Pennsylvania, Virginia, and Wisconsin, only three, Pennsylvania, Virginia, and Wisconsin, are controlled by Democrats.

Republicans control nearly two-thirds of the secretaries of state in the critical swing states and presumably would not have an incentive to rig the election in favor of Clinton.

Look at who votes, runs for office, and give political contributions. All skew toward older affluent white males — a profile not much different from Trump. The major interest groups and political action committees active in campaigns tend to be composed of these types of people, supporting interests more favorable to them than the poor or people of color.

Back in the 1960s political scientist E.E. Schattschneider described a bias in the American political process that favors a democracy for only a subset of the entire population, that observation remains largely if not more firmly true today.

People of color are less likely to register or actually vote than Caucasians. Historically, lynchings and racially discriminatory laws such as poll taxes, literacy tests, grandfather laws prevented African-Americans from voting.

The 1965 Voting Rights Act banned these practices and increased voter turnout among all people of color, but the Supreme Court in 2013 gutted the VRA in Holder v. Shelby County, embolden almost immediately  a new round of laws to suppress voting that may impact the 2016 elections.

A new disenfranchisement is afoot. False claims of voter fraud have led to numerous laws impacting the voting rights of the poor, students, and people of color. Many of these are groups whom if they vote it will not be for Trump. Cutting back on early voting or closing or moving voting locations produces longer lines to  vote.

Seldom are these polls closed in neighborhoods with poor people or people of color. There are stories of purged voter lists, complex rules to register, or in the case of voter id laws, costs associated with securing the documents required to obtain  the ids necessary to vote. They are the new poll tax.

According to the Sentencing Project, more than six million individuals cannot vote because of felon disenfranchisement laws. Some of these bans are for life. These laws disproportionately impact racial minorities with one in thirteen African-American adults unable to vote due to these laws. In Florida and Virginia, two critical presidential swing states, more than 20% of African-American adults cannot vote because of these laws.

Only a very small percent of the population expends money for political purposes. The Sunlight Foundation documents that the richest 0.01 percent of the population accounted for 42% of all the 2012 political contributions. The 2010 Supreme Court Citizens United  decision has pumped more corporate money into elections.

The cost of running for office all but excludes the poor and middle class as candidates, and because women are still confront glass ceilings in business, many face additional difficulties compared to men like Trump in locating  donors and money to run for office. None of this includes the sexist double standards women face as candidates, or the reality that there is still a percentage of the population which will not vote for any female candidate.

In many states the poor cannot take time off from work to attend a caucus or vote in a primary or general election because it means forgoing a pay check. Restrictive ballot access laws make it difficult for third party or independent candidates to run for office.

The Commission on Presidential Debates has adopted restrictive laws regarding who can participate  such that no third party candidate will probably ever again be invited unless he or she is as rich as Ross Perot was in 1992 when he was able to buy his way in as a serious contender.

What little money is left in the nearly bankrupt and broken presidential public financing system goes to a third party too late to help it in the present election. But for the rest of the congressional and most state and local races, there is no public financing, creating a wealth primary that excludes all but a few from even running for office.

It is easy from the position of being white, male, and affluent to say that the American election system is fair and legitimate. The reality is that for millions it is not. It is a system that is actually rigged in favor of individuals such as Donald Trump who has benefitted from a political and economic system that more likely favors people like him.

Elvis Sightings, Space Alien Abductions, and Election Rigging

I have spent way too much time in my career writing about voter fraud, or rather its absence.  Let me offer a few thoughts here about voter fraud and vote rigging.   Here are links to a two of my articles, one in a Harvard publication, the other in Mitchell Hamline Law Review.  I have read just about every credible (and non-credible) study there is on voter fraud and they largely disprove the theory of widespread in-person voter fraud.   Here are a few paragraphs from what I have written.

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund, a report from the Senate Republican Policy Committee in Congress, and the Carter-Baker Report. None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.” Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005. Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections” As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”  Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud. Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent. The chance of being struck by lightning is 0.0003 percent.
Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken, Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.  In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.


The Costs of Voter ID
What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State19 the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.
Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Election Official Manipulation

If elections can be rigged, either party can do it.  The secretary of state (or commonwealth) is the chief election officer in each state and they would have the ability to manipulate the election system to the benefit of their favored candidate.  Of the 50 states, 27 are Republican.  Among the 11 swing states that are Colorado, Florida, Iowa, Ohio, Nevada, New Hampshire, New Mexico, North Carolina,  Pennsylvania, Virginia, and Wisconsin, only four, North Carolina, Pennsylvania, Virginia, and Wisconsin, are controlled by Democrats.  Republicans control nearly two-thirds of the secretaries of state in the critical swing states and presumably would not have an incentive to rig the election in favor of Clinton.

Why political science falls short in predicting elections

My latest blog originally appeared in The Hill on October 5, 2016.

October 05, 2016, 12:55 pm
Why political science falls short in predicting elections
By David Schultz, contributor


Candidates, campaigns and strategies don’t seem to matter in U.S. presidential elections. At least that is the impression often left by mainstream political scientists and their election forecast models. Yet the 2016 presidential election suggests that who the candidates are, what they say, and how they campaign does matter.

A hallmark of modern political science is the scientific aspect of it. It is an effort to create mathematically objective and accurate models that can predict political behavior and events such as elections. Define a list of variables, plug them into an equation, and presto: months before the actual election we can predict a winner.

The leading political science prediction models consider variables that include economic growth, (incumbent) presidential popularity, and how long the current party has been in power. Oddly, many of the best prediction models downplay or ignore political variables such as the impact of presidential debates, the quality of candidates, the role of money in politics and even policy positions — the factors that candidates, their managers, and strategists often discuss and emphasize as critical to electoral success.

The best models for political scientists seem to be the ones that are deployed far in advance of elections, so as not to be tainted by actual politics or the campaigns themselves. Even less statistically driven models seem to assume elections are over before they start. I too am guilty of that, and have argued that because of the Electoral College and partisan alignments, the 2016 election was largely over two years ago except in a handful of 10-12 swing states such as Ohio, or that only about 15 counties will matter this election cycle. Political science models describe how firm partisan and demographic factors such as race and gender are in determining whether and how individuals will vote.

Listen to political scientists and one will think that debates, who the vice presidential candidate is, and even lawn signs do not matter. It seems nothing — especially anything any of us would consider political — really matters. Politics and elections seem to be on autopilot. Theodore White’s classic “The Making of the President” series, while informative, is superfluous in terms of explaining presidential elections. We might as well simply run the models every four years and let them and political scientists pick the next president.

The reality is that politics does matter in campaigns and elections. The very craft of political science in its effort to be scientific often misses that. It misses the subtle shifts in public opinion that occur as a result of a debate. It ignores, especially this year, how candidate character — or lack thereof, as measured by the high disapprovals for both Hillary Clinton and Donald Trump — might affect voting behavior.

The models miss how anti-establishment feelings, whether a voter feels like they could have a cup of coffee with the candidate, potential terrorist attacks, fear of immigration, emails, and a potential massive WikiLeaks dump could shape elections. And these models overlook the impact that get-out-the-vote campaigns, voter ID laws and racism or sexism have on elections.

Perhaps these affects are variables too subtle to measure, or instead they are structural forces that simply escape standard political science models because, oftentimes, these are unpredictable or escape easy quantifying. These are the factors that political operatives consider important — this is real politics.

Real politics is sloppy and dominated by conventional wisdom that it often wrong. It is rumor-fed and hunch- or gut-driven. It’s not scientific.

In real politics voters matter, and they need to show up for candidates to win. Yes, real politics could learn a lot from political science. But political science could learn even more about real politics if it paid more attention to what is happening in politics. Too many of my political scientist colleagues are perplexed this year by the success of Trump, the struggles of Clinton, and why this election is so close. But to really understand and explain the 2016 election cycle, one needs to move beyond macro-statistical models that fail to appreciate how campaigns and elections are affected by micro, subtle and structure forces that take place within an election cycle and are not simply determined well before campaigns even start.