What I learned about the Trump Administration from reading Fire and Fury

Not much.  If one is expecting new insights into the Trump administration packed into an exciting book, Michael Wolff will disappoint.  I finished reading it today and my conclusion is that if you
have already been following the news for the last year, skip the book, you will not learn anything new.  In fact, you will be bored.
Even without reading Fire and Fury what I knew about Donald Trump and his administration was that it was largely a confederacy of dunces, beset by tribal and rival factions, and headed up by a narcissistic, hot-headed, egomaniac, paranoid, who does not read, think critically, or even have a command or clue of what government does or what it means to be president.  This is the story that Michael Wolff tells. We learn of how in many ways the Trump presidential campaign was a publicity and media stunt where no one seriously thought he was going to win and that instead it was viewed as a way to line the pocket books of the candidate when he returned to his businesses and self-promoting.  Thus, why worry about releasing taxes or conflicts of interest.
Trump himself is almost an afterthought or irrelevant as president in this book.  Trump is described as the person who cares little about policy,  retreats to his resorts to play golf or to his bedroom at night to watch television, eat McDonald’s cheeseburgers, and call his friends and complain about how no one likes him or how the world it out to get him.  The White House was divided by three factions–Bannon, Priebus, and Ivanka and Jared–all with their own agendas and an understanding on how to manipulate the president who seems never to remember what he promised or pledged to do.  Sincerity and commitment seem absent to the world of Donald Trump.  Between Trump’s own thin grasp of news and facts, his impulsiveness to act without thinking, and these tribal factions, Fire and Fury describes a presidency as largely divided, immobilized, and simply in capable of acting.
The book also describes a White House full of rookies, none of whom seem to have loyalty  to anyone including necessarily the president (who also seems not to have much loyalty to anyone  either).  No one seems to work together as a team, ready at a moments notice to act on grudge against someone else, whether perceived as a rival or not.  People latch on to the president simply hoping for a job or a career boast, fabricating their skills or resume to obtain favors, and when they do not suit the whims of the president, they are expendable.
The book also does not provide any new insights into the Trump world view, especially as it applies to the Comey firing and the Mueller investigation into the Russian connection.  We do not learn much more about foreign policy decision making, or health care policy, or anything else of substance.  At best the book gives us some gossipy lines which will be mocked in the New Yorker  or quoted cable talk shows.  But even without this book, we were already hearing all of these rumors.
Is the book a pack of lies and why is Trump so made about the book?  The book tells us nothing new so on one level Trump’s anger cannot be about the fact that new dirt has been revealed.  The content here is largely derivative.   The Trump anger is simply typical, his thin-skinned lashing out at any criticism.  But we already knew this was who Trump was.  In terms of whether this book is truthful, the Wolff acknowledges at the beginning of the book that he questioned some of the statements by those he interviewed.  Each interviewee had their own perspective and story to tell.  But second, since the book has come out no one quoted in the book has said their were misquoted  or denied what they said, or–with the exception of Trump–contended that the book mischaracterizes  Trump or his administration.  Silene often speaks volumes.
Save yourself some money and time–don’t buy or read Fire and Fury.  It is a vastly overrated book, marketed well, and written to appease the egos of the Washington insiders who seem to believe that telling this story reveals real dirt about Donald Trump and his minions.   In reality, the book simply tells the story of what we already know about Trump, and there are no surprises there.

Trump and Obstruction of Justice: What did the President do and why?

The penultimate question of the 1973-74 Senate Judiciary Committee investigation of Richard Nixon and Watergate was Republican Senator Howard Baker’s “What did the President know and when did he know it?”  Now the question to be asked is “What did the President do and why?”
Former FBI director James Comey’s testimony on June 8, was significant in many ways.  The first was that it represented a major transformation in the debate surrounding Donald Trump and his presidency.    If before Thursday the main line of questioning was Russian involvement in US elections along with Trump or his surrogates collaboration with them (and that is still a major and important focus of the congressional and special prosecutor investigations), the Comey testimony shifted the debate to questions of whether the president engaged in obstruction of justice when he took certain actions against him or others.  Second, the testimony places Trump and his defenders on the defensive, further damaging the policy agenda of a presidency that is already dead.
Prior to Thursday partisan Democrats fantasized about a Trump indictment and impeachment.  But that was the talk of MSNBC ratings mongering and hyperventilated blog sites.  Republicans largely could ignore this talk, dismissing it as partisan chatter.  Yes the NY Times, CNN, and the Washington Post speculated on this too, but again more to sell papers than anything else.  Comey’s testimony changed that, putting Republicans, conservatives, and Trump supporters on the defense.  The focus of the public discourse , even on Fox national news, now is on whether Trump broke the law, specifically engaging in criminal obstruction of justice.  The former now are debating on the latter’s terms, and this is not good for Trump.
Too much of the debate since Thursday has been predictably partisan, breaking along Republicans acquitting Trump and Democrats convicting him.  But there is no question that the debate now centers on the two questions of what did the president do and why?  The reason for this gets down to basic criminal law–proving actus reus and mens rea.
For anyone who has every taken a criminal justice law  course they know that there are two elements to proving someone is guilty of a crime.  First one must prove that one did a specific deed in question that is prohibited by law–actus reus–and second, that the person acted with the requisite mental intent–mens rea.  Criminal liability is not strict liability–the government must also prove some level of intentionality, and do so beyond a reasonable doubt.  In a free society such as the United States, the government carries the burden to prove guilt, and a jury trial is the classic mechanism of determining that, assigning to 12 reasonable people the task of ascertaining whether the burden has been met.
Obstruction of justice is defined in various places in federal law.  18 U.S. Code § 1505 declares as obstruction of justice:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—


Section 1505 has two important requisites.  One refers to actions that seek to obstruct, impede, or influence some proceeding by any federal agency or Congress (actus reus), and the other to the corrupt purpose (mens rea).  To show that Trump engaged in both one needs to prove both elements and that there is a nexus or connection between the two.
Much of the Comey testimony centered around actus reus–what did Trump actually do.  There were accusations about whether Trump said certain things to Comey such as call him to encourage him to stop the Flynn investigation.  While Trump has called Comey a liar and vice-versa, it would be hard to impeach Comey.  Yes, he may be a disgruntled former employee with reasons to get even, but given his long track record in government there is no reason to question Comey’s veracity under oath  where lying to Congress would bring with it both a major blow to his reputation and a possible felony charge for lying to Congress.  Some of the Trump defenders are factually challenging the Comey testimony, but instead the real battle has shifted from what the president did to what he intended.
Trump’s defenders are arguing that the president did not fire Comey to impede any investigation.  They offer some alternative reasons for his dismissal.  But increasingly they seem to be arguing a case of ignorance–that Trump simply did not understand how government works and the protocols about contacts between the president and his staff, especially those who do investigations.  Such a defense is damning the president with faint praise.
Such a defense first effectively  concedes the president is clueless about how government works and what a president can do. “Trump is not a crook because he had no idea what he could do as president.”  For someone who argued his fitness to be president, this is not a ringing endorsement of the president by his defenders.   Moreover, such a defense holds Trump to a lower standard of conduct than his predecessors.  I do not recall anyone giving Obama or previous presidents grace periods to learn their job or get up to snuff in terms of understanding their legal and constitutional duties.  One is president from January 20, upon taking the oath of office.  In addition, even if the president did nothing illegal, I see no one discussing the ethics of this issue.  By that, under any code of conduct that would should hold any public servant to, Trump’s behavior with Comey (and perhaps more broadly as president) is hardly the model of ethical conduct and decorum.  It should not just be enough to hold someone up to a minimum legal standard of conduct; the ethics of public service sets a higher bar and none of Trump’s defenders seem nowhere near defending the ethical propriety of their man.
Second, how many times have we all heard the phrase “ignorance of the law is no excuse.”  I cannot commit a crime and then say I am innocent because I did not realize I am not supposed to rob, kill, etc.”  Intentionally is generally about wishing to do something prohibited by the law, not necessarily intention to break a law I know that exists.  If I intend to kill someone I am guilty of murder even if I did not know the murder statute exists.  To say that Trump may have intended to fire Comey to impede an investigation but that the president did not violate a law because he did not understand how government operates is simply besides the point.
Third, even if Trump did not understand what he could do as president, the Justice Department is full of attorneys who could have advised him.  Other presidents turn to counsel to get advice, there is no reason for Trump not to have done so.  Fourth, some argue that there is no smoking gun to prove intent, such as an actual memo or tape recording, and therefore any speculation about mens rea is merely circumstantial.  In reality, determinations of intentionality are often if not usually circumstantial; intent or what is in our hearts is often proved by what we do under specific circumstances.  Thus, to show Trump acted with requisite intentionality to violate federal law, the standard would be whether 12 reasonable jurors with open minds would come to believe beyond a reasonable doubt that Trump intended to corruptly impede, obstruct, or influence a federal investigation.  The simply answer is right now we do not know, the investigations are only beginning and they will take time.  We should neither rush to judgement nor dismiss the accusations at this point, the fact finding has only just begun.
These investigations are a problem for Trump.  Once Nixon, Reagan, and Clinton were facing investigations, their presidencies effectively ended.  But for all three in occurred in their second terms after each has achieved significant policy victories.  Trump has no legislative policy or other real victories to count, and his presidency is now hobbled from its inception.  The irony  here is that if one loved the gridlock of the Obama years, we now will face that at least as long as the Mueller and Congressional investigations continue, which certainly will be well into 2018.

Trumpapalooza: It’s Worse than Watergate

With each passing day and news story about the Trump administration, the parallels to Nixon and
Watergate get stronger and stronger.  Yet while stories of coverups, obstruction of justice, and the hiring of a special investigator invite powerful comparisons, the reality is that with Trump it is  potentially far worse than Watergate, far worse than Clinton, Lewinsky, and Whitewater, and maybe even worse than Iran Contra.  Trumpapalooza–an all encompassing, 24/7, multi-media extravaganza, –could be the worst of all presidential scandals so far.
It is unfortunate that one of the defining themes of American politics in the last 50 years has been repeated stories of abuses of presidential power.  Once called the imperial presidency by historian Arthur Schlesinger, Jr., it was a product of granting too much power to the president to act in a range of domestic and international events, congressional acquiescence of its constitutional duties, and usurpation and abuse of authority of presidents for personal gain or revenge.
Watergate is the paradigm of that abuse.  Most narrowly defined, Watergate when the story first broke was about a break in at the Democratic Party national headquarters at the Watergate office building in Washington, D.C.  The story started at first without any allegations of presidential role of White House connection, but it soon expanded to be a much more comprehensive saga of the abuses of power of the Nixon presidency.
The Watergate break in occurs in June, 1972, in the middle of Nixon’s re-election bid for a second term.  Initially there is no indication of presidential involvement but there were rumors shortly after the break in Nixon was already hard at work ordering hush money to cover his tracks.  In addition, in the burglars’ possession when caught was Nixon’s campaign headquarters reelection number The Watergate story does not really take off until 1973 when several reporters and mounting political pressure forced Congress to begin hearings, and then in October 1973 after Nixon had named former Solicitor General Archibald Cox as a special investigator to look into the events, the former fired the later in the famous Saturday Night Massacre.
Through the remainder of 1973 and into 1974 the House and Senate Watergate hearings and the investigation of Leon Jaworski produced a tale of illegal activity that implicated the president of the United States along with his attorney general and other major officials in his administration.  Tied directly to Watergate were Nixon’s ordering of the break in, the cover up, efforts to impede the criminal investigation, and in the end a constitutional battle over the possession of White House tapes of conversations that Nixon had made.  All of this culminated in the Supreme Court decision United States v. Nixon where the Court ordered Nixon to turn over his tapes to a special prosecutor, ruling that the imperatives of a criminal investigation outweigh any executive privilege g rounded in the Constitution  that the president may have in withholding them.  In effect, the president was not above the law.  That decision, along with a House Judiciary vote along bipartisan lines to impeach the president and a grand jury naming the president as an”unindicted co-conspirator,” forced Nixon to resign on August 8, 1974.
Watergate started with a pretty break in of the opposition’s headquarters.  But the entire story of Nixon’s abuse of power also encompassed illegal fundraising, payments of hush money, maintaining an enemies list, attacks on the media, and engaging in an illegal war in Cambodia.  Watergate engulfed, dominated, and ended early Nixon’s second term as president, after serving an initial four years that did produce a score of major legitimate legislative victories including the passage of the Clean Air Act, Clean Water Act, and the creation of the Environmental Protection Agency.  For all the criticism of Nixon, he was a career politician with a congressional and vice-presidential resume, and he had an ability to work with Congress.
It’s potentially far worse than Trump for him, his presidency, the Republican party, and maybe the United States. Trump has no experience in government or the military, and therefore no real understanding or apparent interest in how Washington works.  In many cases he has also appointed individuals with no government experience, and he has failed to fill many critical positions in government.  Trump ran on draining the swamp in Washington and he seems to think that this means crippling the machinery of governance, yet to secure his policy agenda he needs to take control of what Steve Bannon labels the deep administrative state.  So long as Trump continues to show contempt for the Constitution and government he will be unable to get anything done.  The first 120 days portend a pattern of policy inaction, preventing him and the Republicans from securing  their policy agenda.  Trump has created something unique for Washington–intra-party gridlock.  One expected Obama and the Republican Congress to be at odds–but not this kind of stalemate.
But if an aborted or arrested policy agenda were the total of what the problems facing Trump that might not be so bad. Yet it is coming at the beginning of his presidency, not in a second term as was the case with Nixon, Reagan, and Clinton.   But more importantly, the bigger problem are the legal, constitutional, and political issues.  Nixon and Watergate began with allegations of presidential involvement in a petty burglary, the story here involves Trump, his campaign, and his administration’s complicity and conspiracy to work with Russia to interfere and influence American elections and policy.  
Allegations that Trump personally, his family and business dealings, and many of his advisors or staff that include Michael Flynn, Jeff Sessions, and Paul Manafort worked with the Russians, were being paid by them, or in some way coordinated with or cheered on their activities to affect US elections and policy is  far worse than Watergate.  It is far worse than the arms for hostages diversion that Reagan ordered in Irancontra, and it is clearly far worse than Clinton lying about his sexual behavior or losing money in a land deal called Whitewater.
And we can draw this comparison with the benefit of 20/20 hindsight, having all or most of the facts about these previous abuses of power in hand.  Right now few of the facts of  Trumpapalooza are known and investigations have hardly started.  It potentially will reveal far worse.  Who knows how far-flung the story will be, and where it takes one into ow Trump’s private business dealings connect to Russia and other foreign governments or what conflicts of interests it will produce.  Who knows the real reasons for the Comey firings and whether they amounted to obstruction of justice.  Who knows whether the war on the media has produced an enemies list or what other unconstitutional activities (beyond two botched executive orders on immigration and one on sanctuary cites) there are or have been.
The appointment of Robert Mueller as special investigator is only the beginning.  For any who think this is going to be a quick investigation, think again.  The more Trump fights it and sees it as a witch hunt the more likely it seems that he will be uncooperative and force the investigation  well into 2018, thereby nearly guaranteeing that it impedes the Trump-Republican policy agenda, and impacts the elections.
The electoral connection is the last and perhaps most interesting parallel to Watergate.  Until in 1973 when efforts to investigate Nixon were bipartisan, so far the GOP has stood by Trump, tying their political fortunes to him.  They are resisting calls to investigate and criticize.  But if Trump becomes even more of a political liability to them, they may be forced to act otherwise in 2018 there could be a repeat of 1974 when Democrats won huge majorities in Congress, Minnesota, and across the nation.  It is the fear or possibility of that political reality that dictates how the Republicans respond to Trump in the next few months.

The Constitution and Coming Impeachment of Donald Trump

Please note: This is a preview of a talk I will give on Tuesday, May 16, 2017 for Stand Up Minnesota.  Click here for more information.


If in fact President Trump removed FBI director James Comey to impede his ability to investigate
 possible Russian interference in US elections, then Donald Trump should be impeached.  He should be impeached because this is obstruction of justice, a crime meriting presidential removal from office according to the Constitution.  But even beyond the Comey dismissal, there are many reasons that could justify impeaching Trump.  The issue is not if he should be impeached but when, and the when depends on the point when Congressional Republicans think Trump is such an anchor for their party that he impedes their political agenda, party, and electoral prospects in 2018.

From day one of his presidency, Democrats have contended for Trump’s impeachment, yet it was no clear whether he did anything meriting impeachment.  Mostly the calls were political sour grapes.  But with the Comey firing we are in a new realm–commission of a felony–something at least as serious as the grounds for the impeachment of Bill Clinton who lied about his sexual behavior.  So what grounds are there to impeach Trump?  The Constitution provides a starting but partial answer.

Article II, section four outlines the process for impeaching and removing a president from office.  It declares that the president, vice-president, and other civil officers of the United States can be removed from office by “impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Removal of the president is a two-stage process.  First a major of the House of Representatives must agree on one or more articles of impeachment.  If that happens, the House then appoints a committee to lead the prosecution of the articles.  The Senate then must hear the articles of impeachment in a trial-like proceeding over which the Chief Justice of the Supreme Court presides.  It takes a two-thirds vote of the Senate to convict and if that happens, the president is removed from office.  Think of House impeachment as similar to indicting one for a crime of which then the Senate  is a trial to determine guilt.

 What would Trump have to do to constitute an impeachable offense?   Article II, section four lists three possibilities.  Treason is the first, and the Constitution defines that to be engaging war against the United States or giving our enemies Aid and Comfort.  Treason is a high bar to meet, really historically requiring  something where it involves military action or issues that directly address national security.  It is possible that his campaign’s or staff’s collusion with the Russian government is treason but we do not know that yet.  That is why there was the FBI investigation and therefore efforts to impede it might be efforts to obstruct justice.

 The second possibility is bribery.  Bribery would be accepting payments in return for the performance or conveyance of government services or favors.  Given Trump’s extensive business holdings and refusal to divest himself of them, there is a possibility that the conflicts of interest that he personally has could rise to a constitutional level problem that would merit an impeachable offense.  For example, allegations of Russian business connections and how they might be impacting  Trump’s foreign policy decisions might be a form of bribery.

 Finally, there is the phrase high crimes and misdemeanors?  What does that mean?  In adopting this phrase the constitutional framers employed language that had existed in England since  1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties.  Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place.  Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.

 An alternative meaning for the phrase was offered in 1970 when the House of Representatives tried to impeach Supreme Court Justice William Douglas.  The Congressman Gerald Ford said an impeachable offense was “whatever a majority of the House of Representatives considers it to be at a given moment in history.”  In truth, Ford is correct–impeachment is a matter of political judgment where Congress ultimately decides the fitness of a person to serve in office, such as president.

The House could reasonably conclude that the Comey firing was obstruction of justice as a grounds for impeachment.  They could also conclude that if Trump tries to hinder a congressional investigation of his Russian connects, that it too is an impeachable offense in that in interferes with the constitutional powers of Congress.  But there are other grounds for impeachment.

Article I, Section 9, Clause 8 of the United States Constitution states that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  The emolument clause was added to the Constitution out of fears of foreign interference with the US government.  If Trump is receiving directly or through his business holdings money or other benefits from another government, such as a state-owned enterprise, that could be an emolument violation, constituting either bribery or another constitutional violation that could be seen as a high crime or misdemeanor.  Whether all this is factually accurate we do not know and the FBI investigation in part was aimed at answering these questions, thereby making his firing an effort to obstruct justice.

Finally, so far the Trump presidency has been marked by either non- or  mal-administration.  It has largely been ineffective in getting much done, and it is mired in a host of controversies that have rendered his administration unfit to govern.  He is putting US governance in danger, suggesting that it would not be wrong for Congress to decide that his very impotence and incompetence merits impeachment.

Of course whether impeachment will happen is up to the Republicans.  Unlike with Nixon in an era where bipartisanship still existed, so far Republicans are largely behind Trump.  It will not be until he is so politically embarrassing and damaging to the party that he needs to go.  Trump has already done worse than what Clinton did to merit impeachment, and what he has done is potentially rising to the level of what Nixon did. The issue then seems to be not whether he should be impeached, but when.

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.