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.