Doctor Cleveland's picture

    She Was Never Getting Indicted. Really.

    So, Hillary Clinton is not getting indicted. The media presents this as a surprise. But it is pretty obvious that no major political actors are surprised. The press has talked for a year as if Clinton could possibly be indicted. The players (the national Democrats, the Republicans, the White House, the donors) have acted as if they knew she would not. Even politicians who publicly said that she was in danger of indictment acted as if she would not. The simplest answer here is that this story has not been covered honestly.

    Before we get into the bottomless-pit argument about the details of various reports and the phrasing of various clauses in those reports, I am not arguing about whether or not she should be indicted or whether she could be indicted in some hypothetical scenario. If you want to build a hypothetical case that she could be indicted, you surely can, because that is how hypotheticals work. What I am saying is that various movers and shakers have visibly acted on the belief that she would not be. It is clear that the various party actors have taken as given that Clinton would not be indicted, and they have acted on that presumption in ways that we can see, even from the cheap seats.

    How do I know this? I know this because Joe Biden is not running for President.

    If the Democratic or Republican presidential nominee were actually indicted on criminal charges, that would be a disaster for the nominating party. It would be throwing a national election away. No party would just let that happen. If there were even a tiny risk, a 1 or 2% chance, of that happening, there would be a concerted effort to find someone else. That effort might fail, as the effort to stop Trump did. But someone would make it.

    Would Barack Obama gamble his legacy on a Democrat who might be on criminal trial during the election?  No. If Obama thought that there were even a slim possibility that Hillary Clinton might be indicted, he would have made sure that another strong contender from the Democratic mainstream was running. But Obama's behavior indicates someone who has not worried about that possibility at all.

    Would the DNC and the big Democratic donors be willing to risk a nominee who might face a criminal trial? Of course not. They would have made sure someone else ran: if not Joe Biden, then someone like Andrew Cuomo or Cory Booker, someone with business-friendly policies and a reputation as a solid campaigner.

    Would those party decision-makers and donors be willing to have Bernie Sanders be the understudy in case Hillary Clinton was indicted? Of course not. Would they be willing to entertain the risk that HRC would get indicted and thus lose the nomination to Bernie Sanders? Of course not. The primaries weren't rigged in any paranoid way, but it is true that the Democratic establishment genuinely doesn't want Bernie as their nominee, and if they thought HRC were vulnerable, they would have rounded someone else up. Didn't happen, because no one was worried.

    "Ah!" you say, "The fix was in! Obama didn't act worried because he knew he could quash any prosecution." Actually, I didn't say that. If there had been a conspiracy -- if this had been a situation where a conspiracy were necessary -- what you would have seen would be a large number of party actors behaving as if they were very nervous and a small number of individuals, the actual parties to the hypothetical conspiracy, either seeming unusually calm or (more likely) pretending to act nervous rather than tipping their hand. Conspiracies are, by their nature, small and secretive. If the entire Democratic Party establishment is in on something it isn't a conspiracy. It's a campaign strategy.

    If this had been a situation where someone needed to obstruct justice, you would still have seen lots of pressure on Biden to run, and if he refused pressure on someone else. The party as a whole would have been running scared. But in fact, none of them acted especially worried. They weren't worried precisely because they didn't think anyone needed to obstruct justice. Everyone clearly acted on the belief that HRC would be cleared of criminal charges. They didn't deny that her e-mail arrangement wasn't a huge mistake. They just all took for granted that it wasn't a criminal mistake.

    But it's not just the Democrats. The Republicans have also acted, every step of the way, as if they did not expect HRC to be indicted. The endless Republican primary debates all harped on the e-mails, because it was good campaign material, but the whole teeming horde of candidates in those debates spoke matter-of-factly about Clinton as the eventual nominee. All the Republicans have planned, all along, for Clinton to be nominated. They haven't planned for the chance that a criminal indictment might derail her nomination. They didn't plan to face Bernie instead. They did not expect an indictment. And I think we can all agree that no Democratic cover-up would include the various Republican candidates for President.

    If there's no conspiracy, and there isn't, why the mismatch between the way Clinton's indictment chances were discussed and the way people seemed to act on those chances? If both party establishments were acting on the premise that there was no realistic risk of indictment, why was it played a s a big question mark in the press?

    You don't need a conspiracy to explain it. The motives of various actors are right there to see. For the Republicans, obviously, the idea that HRC might get put on trial was beneficial. Making the e-mails a campaign issue is a no-brainer: this is something that Clinton messed up, and it fits the existing narrative about her that has already been established in the public minds. The idea that Clinton's mistake wasn't just a bad mistake but maybe a crime only helps their campaign pitch. I mean, these are the people who held a seventh Benghazi investigation.

    And the media obviously benefited from the idea that criminal charges might be coming, because that's a better story. You don't even have to be slanted against Clinton to want a juicier story. Campaign reporters sell the possibility of unlikely scenarios all the time. Look at how slow the press was to let go of the idea of a brokered Republican convention, long after it became clear that it wouldn't happen. To be fair, mainstream coverage of Clinton never outright said that she would  be indicted. But it was very reluctant to leave out the suggestion that she might.

    That coverage was not accurate. The story was always dog-bites-man: former Secretary of State goofs on e-mails security, is publicly embarrassed, but is never in any real danger of criminal charges. That story was dull, so they hinted at the cooler story instead. The truth didn't bring the media any value this time: what's the point of telling a story everyone already knows?




    I agree with everything you said, but I think you give today's "journalists" too much credit:

    And the media obviously benefited from the idea that criminal charges might be coming, because that's a better story. You don't even have to be slanted against Clinton to want a juicier story

    Anyone with the slightest bit of curiosity and the desire to search for truth would realize the treasure trove of scandals (raping his wife - documented in her book, bribing Attorneys General -  Florida and Texas at least {and using his 'charity' to do so}, all the claims he makes without any proof whatsoever) etc, etc.

    Maybe the reason they leave all of his scandals alone is because they believe that once the dominos start to fall the horse race will be over. But one might reasonably hope that our country's future might weigh in at some point.

    Doc, until now, I viewed this thing pretty much the way you do, but Comey's press-con made me think that this was a closer call than I realized. He didn't find a smoking gun during the investigation, but what if he had? It would not have taken much--a false statement under oath, a deleted email suggesting intent to conceal, a witness. Did Obama and Dem leaders know there would be no indictment? Or were they just lucky?

    PS I don't meant to imply that there was an actual crime, just that the case was closer to meeting the threshold for indictment than I realized.

    Yeah, I hear you. But I don't know how much value to lend to Comey's editorializing, which seems to break the usual prosecutor's rule of "bring charges or be quiet." All the stuff he said about Clinton is, by his own admission, stuff he knows he can't charge her for.

    What would it take? I think your examples basically get at it: she could have turned this into a thing with an effort at obstruction. But, contrary to her reputation, she didn't. She wasn't dumb enough to turn a scandal that wouldn't produce charges into a legitimate obstruction-of-justice charge. And apparently the Dem and Republican establishment figured that she wouldn't.

    I think the sign that she really got close to criminal jeopardy would have been serious charges against some of her underlings. That's how you bring a big player down: by squeezing and flipping her people to make them witnesses. If Hillary Clinton is ever going to be put on criminal trial (which I do not expect), Huma Abedin will probably be looking at a hard 20-year federal sentence first.

    That really didn't happen: the kid who set up Clinton's server got immunity to testify, and maybe a few other people did too. But they didn't face major charges if they didn't cooperate because they, like Clinton, hadn't actually done anything you could put them in jail for.

    Except Comey was wrong about her having more than 1 server in the period 2009-2013 and she only had 1 phone at a time. What else did he exaggerate in scolding Hillary? I don't mean to excuse her with that, but Comey's a fairly unethical political player, and the FBI has been pretty ethically challenged from illegal public surveillance to false pretenses on hacking iPhones to entrapping Muslims as "terrorists" and prosecuting whistle-blowers on iffy secrecy charges. So I think Comey was getting as much mileage out of his part as he could, he voice of authority, playing the demi-urge par excellence and stoking up his position for the next 7 years.

    In a way the speech hurt Hillary, but mostly the closure helps - but in any case, is it the FBI's job to determine a presidential election through innuendo, or should it be "just the facts, ma'am", straight up, quick, close the books one way or the other?

    “… but in any case, is it the FBI's job to determine a presidential election through innuendo, or should it be "just the facts, ma'am", straight up, quick, close the books one way or the other?”

    Ideally, the latter, but if Hillary Clinton is involved the former is obviously preferred.  Comey did everything he possibly could to appease Republicans through suggesting unproven wrongdoing and opining to great length on all the maybes, could haves and mights that no reasonable prosecutor could use to bring charges.  He walked the line beautifully … unfortunately, the GOP is still not satisfied and wants him to show his work.

    Right. But because the Republicans are fools, instead of letting all the anti-Clinton things he said yesterday sit and ferment in the media, they dragged him to the Hill today and forced him to defend Clinton on live TV. It's like they don't even want to catch a break.

    Perhaps a congenital optimist  until now I have believed that Bernie was ,sort of, keeping

    in contention on the chance that there would be an indictment and the party would then have had

    no choice but to turn to him.

    I say "until now" since I'm convinced by your assessment, thank you . Unfortunately a corollary is that Bernie- who probably has reached similar conclusions-will continue his guerilla campaign until the convention. With increased  coverage. 

    Oh well.


    It's frustrating, I agree.

    I like to think there's a happy way forward for both Bernie and the party. In fact, I think he'll do best by himself by doing what's in the interest of the larger group. But then, I'm a little socialist that way.

    Comey's Congressional testimony got him to admit that none of Hillary's emails were marked "Classified".

    Kaplan dissects things further - quite the joke.

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