We already had doubts about whether FBI Director James Comey acted properly in announcing that his investigators had stumbled on some previously undetected emails that were sent through the Clintons' private email server. They had been discovered in the completely unrelated investigation into the sexting scandal of Anthony Weiner, the estranged husband of Huma Abedin, who is one of Hillary Clinton's top aides.
Comey's justification was that he had reasons to think that some of the FBI agents were going to leak the information; so Comey himself sent a formal letter to congressional leaders -- and held a press conference, eleven days before the election. Republicans of course ran with it portraying it as one more Clinton "scandal" that proves she is dishonest. They claimed, falsely, that the FBI investigation of Clinton had "been re-opened."
And that was done even before Comey and the FBI knew what was in the emails, because they had not yet gotten a judicial warrant allowing them to examine the contents. After getting a judge's approval and doing a quick survey of the connections and content, Comey released a second notice saying that they had found nothing new; apparently the emails were either personal and insignificant or were duplicates of emails previously examined.
As in Comey's earlier statement last June, there was no evidence from which he could make a case for any criminal activity having taken place.
But Hillary Clinton lost the election anyway.
No one can prove how much this debacle contributed to the surprise loss. But it was piled on top of the Russian's hacking and Wikileaks' deliberate release of sometimes embarrassing, but neither illegal nor smoking gun evidence of wrong-doing. All of this only reinforced the cloud of absurd accusations -- from murder of a friend to financial improprieties to running a child trafficking ring out of a pizza parlor -- that her opponents have tried to smear her with for 30 years. None of it has been substantiated.
Now the application for the warrant has been unsealed. Some lawyers for the Clinton campaign, but also some law professors, have said that granting this investigation was completely unjustified by the application itself. No new evidence was presented, no reason for new suspicions that would counter the earlier judgment of the FBI Director and his unanimous staff that they had no case for criminal charges. All they had were suspicions based on finding some new emails -- between the Secretary of State and her long-time, trusted aide fer cryin' out loud. What's suspicious about some routine emails between a boss and her aide?
At the most, a few other attorneys have said it's not clear that they did have justification -- citing the tendency to grant such a request when it is a high profile case. Others, however, have said that it actually violated Sec. Clinton's rights under the Fourth Amendment, which states that search and seizure can only be granted when proof of probable cause of criminal findings has been documented.
Professor Clark Cunningham, who holds the chair in law and ethics at Georgia State University, is one who says the Fourth Amendment was violated. “The Fourth Amendment requires you to pretty much know that what you’re looking for is there ― not speculation. This is just speculation,” he said.
How can they say they have probable cause, when there is no reason to believe this contains anything other than the same kinds of communications that have already been deemed not to be "probable cause of criminal findings?" The application fails to show why they thought they had something new and different. And, especially, there is nothing to justify taking such action so close to the election of the President of the United States -- especially when they FBI was being completely silent about the evidence they were finding that Russia was behind the email hacks into the Democratic Party and the chairman of Clinton's campaign, and that is was known that Putin favored Trump.
We now know that the FBI is not the non-partisan, non-political organization we thought it had become since the days of J. Edgar Hoover. That in itself is very disturbing. But this case is pretty blatant interference in our political process not only by the Russian government but also by our own FBI and its Director.
Polling statistician Nate Silver says that “Comey had a large, measurable impact" and that Clinton "would almost certainly be president-elect if the election had been held” the day before Comey's letter. He bases this on the fact that late-deciding voters in the critical states of Michigan, Wisconsin, and Pennsylvania went strongly against her, where she had been leading among those who voted earlier. But, of course, that does not prove that her lead would not have declined even without Comey's intervention.
This is such a consequential change in our presidency. It's not only a major change in philosophy of government and a major change in policies, it is also a drastic turn-around in terms of experience and competence in running the apparatus of government. To think that such a difference could be determined in this way is shocking and frightening -- especially when Clinton's final lead in the popular vote has reached almost 3 million votes.