This article first appeared on the Dorf on Law site.
No one would imagine that the Clinton campaign is happy about the latest controversy that brought her emails back into the headlines.
FBI Director Comey's letter to congressional committees last week certainly threw a wrench into the last days of the campaign.
But is there a way in which this is actually good for Hillary Clinton—or, at the very least, not really bad?
Before I answer that question, I should at least say something about Comey's actions. I initially tried to bend over backward, to the point of doing several backflips, to try to justify what he did. But as has now been very well covered by many others, it is obvious that Comey's decision to issue his letter was at best a mistake.
The closest anyone can come to a defense of Comey is that he had no choice but to do what he did. As one historian writing in The New York Times noted: "If Mr. Comey had sat on the information…he would have…made himself a target for future House investigations, since he had testified under oath that the F.B.I. had completed its Clinton email investigation."
That defense, to which I was initially drawn, ultimately fails to satisfy because it presumes that Comey had something to "sit on," that is, that what he revealed to Congress on Friday was important enough that he had no choice but to act. But anyone who actually bothered to read the letter could see that there was absolutely nothing there.
After all, it is not enough to say that Comey must to tell Congress anything that might be relevant to the Clinton investigation. What counts as relevant?
What if he wakes up in the middle of the night and thinks, "Hmm, maybe if we had re-interviewed all of the witnesses we talked to, something pertinent might have come up." Would he be required to report that? Do his personal doubts count as reportable news?
This is not a bright line, and perhaps one could argue that the new emails were not a figment of Comey's imagination. But the possible relevance of those emails was very much a matter of Comey's opinion, and the letter itself makes it clear just how far on the "nothing to see here" side of the line he was on.
That is why heavy hitters like Yale Law School professor Akhil Amar (calling Comey a "constitutional lightweight" and "a lawyer, but not a great one") and Harvard's Alan Dershowitz (who noted that Comey had no way of knowing whether the new emails were "pertinent to the investigation"), among many others, have savaged Comey's decision in the last several days.
Comey was not, moreover, writing on a blank slate. He had already exhibited a penchant for grandstanding over the summer when he supplemented his official report with a personal critique of Clinton, which is how the very unofficial term "extremely careless" entered the political lexicon.
Nonetheless, we are all now living in a universe in which an attention-seeking agency head has seen fit to send the media into a tizzy regarding a possibly relevant, but maybe also completely unimportant, side investigation. As I suggested above, this is not necessarily bad for Clinton.
The best way to see why Comey might have very inadvertently done the Clinton campaign a favor is to ask a counterfactual question: If Comey had stayed silent, what would have happened?
The most optimistic view for Clinton is that she would have maintained her momentum, and she could have spent the rest of the race helping other Democrats win in a growing landslide. The fact is, however, that forces were already at work to prevent that from happening.
Late last week, before Comey's letter was released, I was thinking about what to write in my columns this week. I tentatively planned to write a column today with the title, "Death by News Cycle Boredom." The idea is that the political media has an incredibly short attention span, and there was no way that they would be satisfied with a smooth glide path for Clinton. Something would have to be used to gin up a story.
It apparently does not matter that Trump has disqualified himself from the presidency again and again. The sexual predation storyline was getting stale, and no one could even remember the tax controversy from earlier in the month. Clinton had cleaned Trump's clock in all three debates, but those were so five minutes ago.
In the absence of a bombshell, we were being fed stories about increased premiums in the Affordable Care Act, with speculation about how that could help Trump. But the bigger point was that any attempt on Clinton's part to, say, remind people that Trump has still refused to accept the results of the election would be dismissed as yesterday's news.
In this alternative universe, and without breaking news, the most likely storyline would have been to focus on polls showing the race tightening. There is always a way to sell that story. Momentum for Trump!
And we almost surely would have also been treated to pseudo-psychological stories about how Clinton is showing signs of arrogance as her victory seems tantalizingly close. Any anti-Clinton narrative would do.
Remember, we are working in a media reality where even people who support Clinton feel compelled to make snarky comments about her. Times columnist Gail Collins, for example, wrote a column early last week in which she recounted how badly Trump had performed at the Al Smith Dinner. She then offered this:
In a perfect world, Hillary Clinton would then have gotten up and given the most good-natured speech in political history, scrapping all the barbed lines in her prepared script, like the one about how a Trump White House would be awkward for gatherings of the ex-presidents (“How is Barack going to get past the Muslim ban?”). But she didn’t change a word, because Clinton is not a spontaneous politician.
If this were a normal election, we could have a very interesting discussion about how programmed she can be, and whether that would be a problem if she’s elected. But as things stand, unless we discover she’s actually an android, there’s just no point.
The only time the media scrum migrates in Clinton's direction is when they feel that they have been played, such as the universally negative press reaction to Trump's stunt in which he announced that he would renounce "birtherism." There, he used the national press coverage to promote his new hotel in Washington, and then he added insult to injury by making up new lies about Clinton's supposed role in the birther conspiracy.
Even after only a few days of post-Comey coverage, two things were already running in Clinton's favor. First, the press has begun to notice that there was no substance to the letter. We are now learning that there was no proof that any of the"new" emails were ever on the Clinton private server, that the FBI had not even applied for a search warrant before Comey acted, and so on.
Second, Trump and the Republicans have, quite predictably, overplayed their hand. Congressman Jason Chaffetz—who apparently has decided that he can, after all, tell his 15-year-old daughter that he will vote for a sexual predator—immediately claimed that Comey had reopened the investigation, which was simply false.
Trump, meanwhile, laughably called this "worse than Watergate." And this is exactly what seems to really piss off journalists. The default instinct of the political press, as far as I can tell, is that anyone who is making big statements needs to be taken down a notch. Trump reliably sets himself up to be ridiculed and refuted.
By Sunday morning—less than 48 hours after the Comey letter first caused a cable news sensation—the talk shows were focused on the second-order question of whether the FBI director had acted appropriately, not on the content of the emails. Even after less than a week, the story has gone completely meta, with discussions about whether there ever was a story.
Still, a reasonable person might object to my don't-worry-be-happy assessment, because Clinton and the Democrats are clearly worse off today than they were on Friday afternoon. How can that not be bad for them?
The answer is that we should not be asking whether they are worse off than they were before, but whether they are worse off than they would have been otherwise.
Counterfactuals are frustrating and all too easy to manipulate, because by definition they cannot be verified empirically. And it is certainly possible that a no-Comey-letter version of history would have been better for Democrats than the history that we are living. It is also, of course, possible that Comey or someone else will drop a bigger bombshell between now and November 8.
However, it seems impossible that Clinton's comfortable position last week would have lasted. Moreover, after a few days of seemingly bad news for Clinton, we are even now seeing breaking news that Trump used "aggressive" tax strategies that were so risky that his lawyers warned him that he would probably lose if audited. That is, he is a tax evader, not a tax genius. The media train moves on.
If Trump beats the very long odds and wins the election, people will understandably focus on the FBI director's historic error, both because of its timing and because of its unprecedented nature.
Even so, at this point it seems quite possible that Clinton and the Democrats are already making lemonade out of lemons. It is all about understanding the press's short attention span, default snarkiness, and attraction to shiny new objects.
Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.