Over the past week the two major-party presidential candidates came face to face with their deepest and possibly fatal flaws. The striking thing is that in both cases the candidates’ colossal errors of judgment carried deeper meaning because they summoned up a pattern of behavior. Though he declined to recommend indictment, FBI director James Comey’s stern rebuke of Hillary Clinton for her “extremely careless” use of the private email server sank in with the public because her transgressions are redolent of her behavior in the White House as First Lady. In quickly called hearings two days later, angry Republicans in Congress pummeled Comey with questions as to why he hadn’t recommended that the Justice Department prosecute Clinton, though it was clear that their real interest is in exploiting the issue for as long as they can. So indicted or not, Clinton will continue to live for a long time with the consequences of her putting her chronic passion for secrecy above following the rules.
Donald Trump’s failure to display any concern about his campaign’s depiction of a Star of David against a bed of hundred dollar bills and next to a picture of Clinton, raised its own deep qualms for the public because it was all too characteristic of his behavior throughout the campaign. He reminded people of his earlier trafficking in the language and symbols of neo-Nazis, white supremacists, and blatant anti-Semites—and his refusal to disown David Duke, and his chronic willingness to stir up racial tensions–all in the interest of furthering his political ambition.
In both cases the way they handled the problems made them worse. In seeking to justify her use of the private email server Clinton had engaged in serial lies and legalisms, ones that she should have known would be easily caught and deconstructed. For his part, Trump, typically loath to apologize, rather than getting past this latest episode of flirting with hate, once more attacked his critics—this time he and his campaign insisted, implausibly, that the star represented a sheriff’s badge. His defenders’ testimony that, Oh, no, Donald isn’t a racist/anti-Semite/what-have-you, are wide of the mark. The problem isn’t what Trump thinks but his willingness to dispense the hate groups’ poison for his political purposes. If Trump’s a tolerant man—and even assuming he is—that only renders him more cynical, makes him no better than the politicians who’ve gone before him in reaching for high office by stirring up hate.
To note the striking parallels in Trump’s and Clinton’s situations isn’t for a moment to equate their worrisome aspects. In each case it comes down to the possibilities for distractions and chaos if they were to govern. A highly useful exercise during a presidential campaign is to try to imagine certain behavior by a candidate being indulged in in the Oval Office; in this election that exercise is urgent.
Comey’s comments in essence accused the Democratic presidential candidate of lying to the public. One by one he destroyed the various defenses that Clinton had offered over the past year. His doing so was highly unusual; ordinarily the FBI makes a recommendation for or against prosecution without comment, and some legal observers maintain that the fact that Comey may have been attempting to protect his own reputation and that of the FBI wasn’t germane to the case, which he should have stuck to.
That Clinton escaped a trial wasn’t a surprise to anyone I know, including experienced trial lawyers. That the Republicans had gleefully predicted she’d be prosecuted didn’t necessarily mean they thought she would. It was a useful destabilizing message and when the predicted outcome didn’t happen, they proceeded to find other ways to perpetuate the issue; Thursday’s hearing with Comey was just the beginning; Attorney General Loretta Lynch has been called to testify next week on her approving Comey’s recommendation. Hearings have been the instrument for dragging out issues involving the Clintons and the Obama administration and for searching for someone to ruin. Eight sets of hearings on the matter failed to ensnare Hillary Clinton in the Benghazi tragedy; they needed something new. (Though it’s not at all clear they’ve thought through what they seem to be asking for: if Clinton were actually indicted and subject to a trial she might have to leave the race, in which case Joe Biden, free of Clinton’s drawbacks, might jump in. It’s altogether likely that most Republicans would rather have the issue.)
People who said all along that Clinton wouldn’t be indicted argued two things: that it would be very difficult to prove criminal intent to violate the laws on handling classified materials; and that practically speaking, on the basis of the known facts it was highly unlikely that a presidential candidate would be indicted for the infractions she may have incurred. In his testimony before the House Oversight Committee on Thursday, Comey flatly denied that anyone had influenced his decision, and such is the reputation for probity of this former Deputy Attorney General in the George W. Bush administration that the Republicans backed off of actually accusing him of selling out to the Clintons (the clear implication of their questions). That left Clinton as their target.
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But the Republicans also seem to have forgotten some not-so-distant history and appeared to know little about trial law. In one exchange, a Republican Congressman said to Comey, “As a non-lawyer, as a non-investigator it appears to me that you have got a hell of a case.” To which Comey replied, evenly, “And I’m telling you we don’t and I hope people will take the time to understand why.” In order to convict a prosecutor has to prove beyond a reasonable doubt that a crime was committed. That’s a heavy burden. In Thursday’s hearing, Comey emphasized again and again the difficulty of proving that Clinton intended to violate the secrecy laws.
In announcing the FBI’s recommendation to Attorney General Lynch, Comey said that “our judgment is that no reasonable prosecutor would bring such a case,” and that, “prosecutors necessarily weigh a number of factors before bringing charges”—which may have been alluding to this “prosecutorial discretion.” Among the factors the FBI considered in arriving at its recommendation, Comey said, was whether “vast quantities of materials [were] exposed 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. We do not see those things here.” He added that people who had committed similar acts might have been penalized administratively, “But that is not what we are deciding now.”
It’s not uncommon for prosecutors to decide not to bring a case they think they can win; it depends on circumstances. To assume that decisions to prosecute the high and low can be made in a vacuum is to deny reality. One experienced trial lawyer told me, “It comes down to common sense”: what’s the likelihood of conviction and what are the risks of bringing the case? It’s actually not so unusual for a prosecutor to take into account the identity and circumstances of the person being investigated in deciding whether to bring charges. There’ve been prominent examples of this in recent decades: the decision by leading Senate Republicans that they’d prefer that Richard Nixon resign rather than their convicting him and then he was protected from prosecution by a pardon; the conclusion of the Iran-Contra committee that they shouldn’t recommend impeachment of Ronald Reagan because the country had yet to heal from Nixon’s being driven from office. In the now-largely forgotten furor over the leak of the identity of Valerie Plame as a covert CIA agent the prosecutor Patrick Fitzgerald (a close colleague of Comey), decided not to indict Karl Rove, who had leaked her name to the press. Scooter Libby, a close adviser to Dick Cheney, was indicted but Cheney, on whose behalf Libby was undoubtedly working, was left undisturbed.
But there’s simply no evidence that Comey took into account that the investigation at hand involved the expected Democratic nominee and therefore if she were indicted it would throw the political system into chaos. (And what if after she had to give up the nomination because of an indictment she was cleared?) Comey’s statement that he could find no precedent for prosecuting this case came under immediate question by Republicans and their allies in the press but thus far there’s been only one case that Republicans cite, which used the lower standard of “gross negligence,” and of that, Comey told the House committee, prosecutors have “grave concerns” about using a lower legal standard “and have applied it only once in the last century.” The Supreme Court has said that this standard is “nebulous.”
Donald Trump and others are incorrect in saying that David Petraeus was prosecuted for doing less; Petraeus was well aware that he was handing classified documents to his mistress—about which he lied to the FBI. Though Comey testified that Clinton didn’t lie in her interview with the FBI, in response to a question, he said that the FBI hadn’t investigated whether she’d lied before that committee about the server in her testimony about Benghazi because the committee hadn’t sent him a “referral,” or request for such an investigation. The committee sent him one later that afternoon. Comey was peppered with questions about whether Clinton shouldn’t have known that she was transmitting classified material—a not unreasonable assumption–to which he explained (again) that under relevant statutes prosecutors would have to prove Clinton clearly knew she was breaking the law. “Should have known, must have known, had to know, does not get you there,” he said.
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Washington specializes in furors. Benghazi. President Obama supposedly manipulating the IRS. House Republicans trying to impeach the current head of the IRS for bureaucratic errors made before he got there. Politicians or their aides leak damaging information to see if it sticks. The press joins in the fun, racing to beat each other to new disclosures. Small matters get blown way out of proportion. We talk about the latest political volcano at social events until the matter has become exhausted or reaches a dead end, or people become bored and move on to the next scandalette.
The lack of evidence of criminal behavior in Hillary Clinton’s handling of the private server has done nothing to discourage conspiracy theorists from the idea that something funny was going on, and the Clintons handed them highly useful material. Whatever the purpose of Bill’s cloddish visit to Attorney General Lynch’s plane a few days before Hillary was to be interviewed by the FBI, at a minimum he believes he can charm an owl out of a tree. The result was that he compromised the highly regarded Lynch and fed the fevered speculation that, well, something was happening. An even more confounding act was the Clinton camp’s telling The New York Times on July 3 that if she became president she might well keep Lynch in her job. Even if these were innocent matters, they were profoundly stupid—can the Clintons be that tone deaf?—and clouded Hillary Clinton’s situation.
If the purpose of Hillary’s agreeing to sit down with the FBI on the Saturday of the July 4 weekend was an attempt to bury the story, it failed spectacularly, as it was likely to, with so little else going on in Washington. The suggestion that Barack Obama’s first campaign appearance with Clinton—which took place Tuesday afternoon following Comey’s press conference (about which he said he had told no one)–was an effort to step on the story overlooks the fact that such a presidential trip is planned long in advance.
In their eagerness to perpetuate the Clinton email story, the Republicans, headed by Trump, are cruising for dismissal as a bunch of partisan hotheads. Trump has pronounced that the FBI director’s decision was more proof that the system is “rigged.” (But Trump makes a poor Bernie Sanders.) House Speaker Paul Ryan, who keeps defying the myths that have been erected around him, stepped into the muck the day of Comey’s press conference by charging that the decision not to prosecute “defies explanation.” Ryan went further the next day by saying that as a nominee Clinton should be prohibited from seeing classified material, a statement that bordered on the wild. (Actually, there’s been a certain amount of nervousness in Washington about the fact that, following the Republican convention, Trump as a nominee is to receive classified briefings.) Lest anyone think this whole effort wasn’t a partisan affair, Republican National Committee chairman Reince Priebus weighed in. And then there was the news that during the hearings Trump sent out a fundraising email saying that the FBI had let Clinton “off the hook.” He wrote, “We know the FBI refused to hold Lying Crooked Hillary accountable. But working together, we can hold her feet to the fire.”
It didn’t have to be this way. Comey had handed the Republicans plenty of talking points for attacking Clinton. Instead, by going after Comey’s integrity, even by implication, they kept hitting a brick wall. This revives a longtime pattern: the Clintons do something untoward but not illegal and the Republicans overrespond and end up looking the fools. (Bill Clinton enjoyed the highest approval ratings of his administration as a result of the Republicans voting to impeach him over his affair with Monica Lewinsky.)
In the end, what we need to know is what Clinton herself has concluded from the long ordeal over her use of the personal server. We need to know if she understands that her infraction was more serious than a “mistake,” that she regrets because it became a nuisance for her. Does she dismiss all the attention to it as “partisan,” which it only partly is? We need to know if she’s been sufficiently shaken by this and similar events in the past to take more care in proceeding according to what she sees as more convenient rather than to what the rules or laws or even aboveboard practices are. One of the most disturbing aspects of the email case is that Clinton was surrounded by enablers. Does she understand that she needs at least one person around her who can tell her to her face that she shouldn’t do something? Would she want someone like that around after all those years of doing without?
The Obama-Clinton show put on in Charlotte, N.C., on Tuesday afternoon made for another unusual spectacle, if of a different kind. Obama was clearly a happy man. With his approval numbers at more than 50 percent he’s having the last laugh at his Republican tormenters. Democrats in Congress, many of whom avoided joint appearances in 2014, now clamor to campaign with him. Obama’s liberated: he doesn’t have to run again and so can relax and have fun. While Clinton spoke first, Obama’s mobile face registered a symphony of expressions, from mugging to laughing to making gestures to the ecstatic crowd.
But Obama had a serious purpose. He’s understood to be concerned that Hillary Clinton’s high negative approval ratings will hinder her when she tries to govern. His mission was to raise the public’s opinion of her by endorsing her character, toughness, and seriousness. (It may be recalled that Clinton’s “likeableness” was something Obama helped make into an issue in 2008: “You’re likable enough, Hillary.”) It’s not clear how or even if her being so disliked can be cured, since the public has known Clinton for a long time, even though she’s become a far more relaxed and warmer campaigner than she was when she started out last year. In Charlotte, Obama also sought to decimate Trump, whom he doesn’t like (there was that birther thing) and finds deeply unsuited for the presidency. Using humiliation as his instrument he made fun of Trump’s habit of tweeting his opinions. Obama told the delighted crowd, “Sasha tweets,” but, he added, that didn’t mean that she thinks she’s qualified to sit behind the presidential desk. Obama used the meme, the chair “behind the desk” to elicit the picture of Trump sitting there; Obama was drilling down on the idea that people wouldn’t be comfortable with that.
With the July 3 Times piece—combined with some things Clinton said in Charlotte-we have begun to get a picture of how Clinton plans to govern. Drawing on her ability to work with Republicans when she was in the Senate and her conviviality over a cocktail, Clinton has come up with an emulation of Franklin Roosevelt’s regular late-day sessions in his office, for which he enjoyed mixing martinis. Clinton’s idea, as laid out in the Times, is that members of Congress, Democrats and Republicans, would be invited to these sessions. Whether or not she can also capture the legendary Roosevelt charm, that it’s her ambition to do so is telling. But there’s another thing: many Republicans despise her and she may find herself in the same situation as Obama, with an opposition party determined to block whatever she wants to do. Also, the Senate Republican Party she dealt with then isn’t the more rigid and disciplined Senate Republican Party of today.
In interviews for the Times piece Clinton associates drew a picture of a cabinet at least half made up of women, and of including more modern, entrepreneurial figures such as Sheryl Sandberg and Tim Cook. (It was in such conversations that Loretta Lynch’s name was conspicuously dropped.) In her remarks introducing the president in Charlotte, Clinton shifted even more in the direction of Bernie Sanders, calling for free education for qualifying in-state students at public colleges and universities, an idea she attributed to Obama, and for lessening the burden of college loans. The plan for the week was that after Obama on Tuesday, Biden would campaign with her on Friday, but their appearance was cancelled in light of the shooting to death five policemen in Dallas the night before.
Trump, who was also in North Carolina on Tuesday night—clearly this was intentional—also ignored Comey’s gift of Clinton’s “extremely careless” use of the private server and other negative comments. He instead served up the prevailing conspiracy theories, calling the suggestion that Hillary might keep Lynch on “a bribe.” (Unfortunately for Clinton she or her staff allowed that impression to take hold.) But Trump, who’s again relying on the rallies he prefers to the Teleprompter-reading appearances, couldn’t stay focused on Clinton’s new difficulties, instead wandering into sideshows, including his praise for Saddam Hussein for killing “terrorists.” (“Terrorists,” as currently understood, weren’t the issue in Saddam’s Iraq, and that the Iraqi dictator also jailed and killed political opponents went unmentioned.)
Republicans despaired once again over Trump’s lack of discipline, and were beginning to come to the realization that he was unlikely to morph into something he’s not. Hanging over of them was the ill-considered Star of David episode, the likes of which they could no longer console themselves wouldn’t happen again. In fact, in a rally in Cincinnati the next night Trump defended the star again, and attacked the press for saying it was what it was: “I said we shouldn’t have taken it down,” and “I’d have rather defended it.”
And so the week that began with our annual national celebration ended in a cacophony of charges and misdirected attacks and the prospect of more ugliness as the two most disliked candidates in our history seek an acceptance that keeps eluding them—mostly because of their own acts. And their apparent inability to change their inner nature.
Part of Elizabeth Drew’s continuing series on the 2016 election.
