Donald Trump has grabbed headlines by claiming Hillary Clinton’s email fiasco is “worse than Watergate.” To the horror of liberal America, Trump promised in the second debate that Clinton will “be in jail” for her emails if he becomes president. These are the kinds of polemics that capture journalists’ attention, but they aren’t very helpful for those looking for a thoughtful historical and legal explanation of the email controversy.
Clinton’s emails have returned to the headlines because of FBI director James Comey’s recent letter to Congress announcing that he has discovered emails from Clinton’s aide Huma Abedin that “appear to be relevant” to the FBI’s investigation. Clinton supporters condemned Comey’s admissions that “the FBI cannot assess whether or not this material may be significant,” that he is unsure “whether they contain classified information,” or whether any of the emails even retain “importance to our investigation.” His vague language was used by critics to frame Comey as throwing his hat in the political ring, attempting to tilt the 2016 election toward Donald Trump. Democratic Senator Harry Reid suggested that Comey may have violated the Hatch Act of 1939, which prohibits federal employees from actively supporting election candidates. Comey’s actions, at the very least, run contrary to longstanding precedent at the Department of Justice and FBI to not get involved in electioneering in the months before election day.
To hear Comey tell it, he decided to put out the letter to update Congress on the reopening of the investigation. As Comey stated: “we don’t ordinarily tell Congress about ongoing investigations, but here I fell an obligation to do so given that I testified repeatedly in recent months that our investigation was completed…I also think it would be misleading to the American people were we not to supplement the record.” Whether Comey understood that he was entering in the partisan election game by sending the letter, the reality is that his words have been used by the Trump campaign and Republicans to suggest that Clinton was involved in criminal behavior and should be prosecuted as such.