It’s been 72 hours since FBI Director James B. Comey sent a letter to Congress announcing that new emails considered “pertinent” to the investigation into Hillary Clinton’s private email server had been discovered on a computer belonging to former congressman Anthony Weiner (D-N.Y.) and Clinton confidante Huma Abedin.
Those three days have been dominated by partisan posturing — Democrats screamed themselves hoarse insisting there was nothing to this story, Donald Trump maintains that this is a bigger political scandal than Watergate — that has done very little to clarify what is actually going on here.
Given the amount of misunderstanding, misinformation and complexity involved in the email investigation, I thought I’d try to figure out what we still don’t know (and what we do) about this whole thing. My attempt to do so follows.
1. How many emails are we talking about here?
When the news of the Comey letter broke, estimates of the number of emails that had been found ranged from three (Democratic view) to tens of thousands (Republicans).
The weekend provided us more clarity on that front, with sources telling The Washington Post and the Wall Street Journal that there are upward of 650,000 emails on the computer that Weiner and Abedin, who are in the process of getting a divorce, shared.
What’s less clear is:
(a) How many of those emails are relevant to the Clinton server investigation? Presumably lots and lots have zero to do with Clinton or Abedin. But according to WaPo reporting, there is a “significant amount of correspondence associated with Clinton and her top aide, Huma Abedin.” So, there’s that.
(b) How many of the emails that are from or to Clinton or Abedin are duplicative of other emails that the FBI has already seen and examined? That we don’t know, largely because the FBI just got a warrant yesterday to examine the emails on the Weiner-Abedin computer. They haven’t had time, obviously, to figure out how much duplication there is.
2. Will any of the deleted Clinton emails be in this group?
Remember that Hillary Clinton deleted more emails than she turned over to the State Department for review. Her explanation was that those emails were entirely personal. But it also came out that the lawyers who reviewed her emails did not, in fact, read all of them — instead relying largely on subject lines to determine whether they were personal or professional.
(The Washington Post)
Republicans have long seized on the 33,000 emails that Clinton deleted as evidence that she was/is trying to cover something up. On Monday in Grand Rapids, Mich., Trump said he thinks those deleted emails are part of the trove that the FBI discovered on the Weiner-Abedin computer and insinuated that, when found, they would spell doom for Clinton’s candidacy.
That’s a lot of “ifs” — none of which are proven. Sure, it’s possible that some of the emails Clinton dismissed as personal and deleted are still on the Weiner-Abedin computer. But even if they are — and we have no idea that they are — it’s possible that the emails are, in fact, totally personal. No matter what, we’re not even close to making that determination.
3. When will we hear from Comey again?
James Comey (Eric Risberg/AP)
The FBI director is under no obligation to speak publicly again before the investigation of the new emails is concluded. And if no wrongdoing is found, Comey is not required to say anything ever again about this investigation. In fact, Comey’s decision to speak publicly in July after the FBI’s decision not to move forward with any indictments in the case was highly unusual — which Comey himself acknowledged.
The Clinton campaign and its Democratic surrogates spent the weekend pushing Comey to say something about the new emails by the close of business Monday. But given what we know about the warrant and the raw number of emails on the computer, it seems very unlikely that we will hear from Comey anytime soon.
That said, the amount of attention this latest announcement has drawn makes it nearly impossible for Comey to say nothing — even if no wrongdoing is discovered.
Which leads to …
4. Will this wrap up before the election?
This, politically speaking, is the most important question because the election is only eight days away. And the reporting is mixed.
CNN is reporting that it is very unlikely that this phase of the investigation wraps up before next Tuesday. But NBC’s Pete Williams seems to offer an alternative explanation in today’s First Read:
NBC’s Pete Williams reports that it’s possible the FBI’s review of the emails could end quickly — now that the FBI obtained a warrant to search them. “They’ll narrow them down to look at just those dating from the time Hillary Clinton was secretary of state. Then they’ll weed out any that are not about government business. Agents will use automated software to search what’s left for duplicates they’ve already found during the investigation of the Clinton e-mail server. Any that remain will be checked for classified information,” Williams reported on “Today” this morning. “Officials say there’s no way to tell how long that will take. But they say if it goes quickly, and nothing classified is found, the FBI could say so within the next few days. It largely depends on how many of the e-mails are duplicates and how many are new to the investigators.”
The truth is that no one can really say when this investigation will wrap up because, well, no one knows exactly what the FBI will find in these new emails. If there is nothing, it’s possible, as Williams notes, that the process could go quickly. If something is found that raises further questions about how Clinton or her top aides used the private server — or what their motives were in setting it up in the first place — it could be a far slower process.
The high profile of this investigation suggests that the FBI will use an abundance of caution in examining these new emails before offering a clear verdict. That would be bad news for Clinton as she could not claim exoneration before the election. Or it could be terrible news for Clinton if there is actual wrongdoing found in these emails that could lead to some sort of criminal proceeding against a President Clinton.
5. Might Clinton actually be indicted?
First off, we still don’t know anything about the contents of the emails on the Weiner-Abedin computer. That said, for the FBI to move beyond its initial refusal to charge Clinton with anything, something the bureau finds in those emails would have to prove that the former secretary of state intended to obfuscate and break the rules with her email server setup. Simply breaking rules and established codes of conduct — as Comey said Clinton did when he addressed the public in July — is not enough.
This is what American University law professor Stephen Vladeck, an expert on prosecutions involving classified information, told WaPo’s Ruth Marcus about the original investigation: “There are plenty of unattractive facts but not a lot of clear evidence of criminality, and we tend to forget the distinction. This is really just a political firestorm, not a criminal case.”
For the case to elevate to a criminal one, intent is needed.