Skating on Thin Ice

By Charles Lipson
July 07, 2016

Hillary Clinton skated across the pond on thin ice, but her email problems will last through November.

The FBI’s refusal to recommend an indictment is obviously a huge win for Clinton. But her reluctance to take a victory lap is instructive. She knows she will continue to face withering attacks—attacks she cannot wave off as ridiculous conspiracy theories. After all, FBI Director James Comey publicly shredded all the defenses Hillary used for the past year.

What can you expect in the coming weeks and months?

First, you will see plenty of Republican advertisements showing Clinton’s previous lies and misstatements on this issue. Video clips will show her saying, “I never sent or received anything classified,” and, after that proved false, “I never sent or received anything marked classified.”

Those statements will be juxtaposed with Comey describing the FBI’s evidence. Also proven false: Hillary’s statements, under oath, that she turned over all her work-related emails. The simple, devastating message of these ads: Clinton is utterly untrustworthy. The public already believes that. The ads will cement that perception, using Clinton’s own voice.

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Second, the Republicans will hold several hearings designed to reveal the FBI’s evidence against Clinton. If they cannot get the key evidence on the record, they will likely portray this as an official coverup. They will also want to know what Comey meant when he said Clinton was “extremely careless.” How does that differ from the legal term of “gross negligence”?

Here, Clinton is fortunate, twice over. Comey is highly respected. He’s a top-notch lawyer who can handle these questions with ease. She’s also fortunate that the investigators this time are elected officials, not legal counsel for the congressional committees. Senators and representatives have proven, time after time, that they couldn’t investigate a missing ham sandwich. And they are too vain to turn over the hearings to professionals who could.

Third, you will see lots of sad stories from servicemen and women and intelligence officials who were charged with crimes even though they revealed almost nothing, mishandled far less than Clinton, and only did so inadvertently. The contrast with Hillary’s open-door server will be stark. The goal is to show that the former secretary of state and her aides received special treatment.

Special treatment is a big deal because our democracy is premised on the notion that everyone is subject to the same laws, the same treatment by government. That is supposed to include the rich and powerful.

The public’s growing conviction that “equal treatment” is a farce is the heart of both Bernie Sanders’ and Donald Trump’s campaigns. From different sides, they are saying the top 1 percent get special deals and insider treatment. Voters know it in their guts. Just glance at the tax code, they say. It’s filled with carve-outs for special interests. Every one of them earned some congressman a dump truck full of campaign cash and some lobbyist a lovely summer home.

You will also see lots of questions about the Clinton Family Foundation and whether it is run honestly, or even legally. Director Comey said nothing about that white-collar crime investigation. The Republicans assert that the foundation is effectively a slush fund for the Clinton political machine. They will add that Bill Clinton got rich selling insider access, much of it while Hillary was in government.

Fourth, look to see if there are leaks from ordinary FBI agents, the ones who did the nitty-gritty investigation, and from mid-level intelligence agents who examined the security classifications. If they think their hard work was buried for political reasons, they won’t stay quiet. On the other hand, if you don’t see many leaks, they probably think the director did an impartial job.

Besides those important signs, there’s one even bigger one. Are there verbatim leaks from secret documents, especially late in the campaign?

If you see those, they won’t say, “Courtesy of the Kremlin,” but that’s who will be leaking them. Right now, we simply don’t know if the Russians, Chinese, Iranians, or others managed to hack Hillary’s servers. Comey only said the servers “might” have been breached. We won’t know until late September and early October, when the campaign is in the final stretch.

To read expanded column, click here.