Hillary's Emails: Much Ado About Nothing—Again

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FBI Director James Comey testifies in Washington on Thursday. Neil Buchanan writes that Republicans will include the email server issue and Benghazi as things that make Hillary Clinton untrustworthy, ignoring that both proto-scandals have gone nowhere. Gary Cameron/Reuters

This article first appeared on the Dorf on Law site.

FBI director James Comey has announced that the bureau will not recommend that charges be brought against Hillary Clinton for using a private email server during her years as Secretary of State.

Although Comey's statement included what a New York Times reporter described as "an extraordinary public tongue-lashing," that tongue-lashing was actually rather mild: "'There is evidence to support a conclusion,' [Comey] said, that Mrs. Clinton 'should have known that an unclassified system was no place for that conversation.'"

That is hardly the stuff of political bumper stickers. It is annoying to the Clinton campaign, no doubt, but in the larger sense they are probably better off with a "mixed" report from the FBI rather than a full exoneration.

In any case, the new round of conspiracy theories has surely already begun. I have not yet forced myself to read any of the right-wing responses to Comey's announcement, but this is all painfully predictable. The fix was in, right-wingers will say, with the Clintons and the Obama White House making sure that the FBI did their bidding.

But what about the kerfuffle over the brief meeting between Bill Clinton and Attorney General Loretta Lynch last week, and Lynch's subsequent agreement not to overrule the FBI? Well, any conspiracy theorist can tell you that the whole thing was a set-up, with Bill Clinton planning to make a "mistake" in public and then apologize for it, and Lynch playing her part in the drama to make it look like the political appointee had not influenced the result.

Which means, of course, that it is possible to claim that Comey himself was in on the conspiracy. As I noted above, his mixed exoneration of Clinton is in some ways good for her, because now it does not look like the FBI was completely siding with her.

But for those who are so inclined, that merely means that the mild rebuke was part of the whole plan, so that Comey would not look like the patsy that he surely must be.

And all of this then allows Clinton-supporting bloggers like me to play our part in the grand scheme, by going meta on the whole thing with posts like this one. Thinking through the possible sub-conspiracies within the bigger conspiracy would be fun if it were not so dreary.

Leaving aside the conspiracy nuts, however, there are a few interesting aspects of this story that merit some additional comment.

It is notable that the Democrats' response to the Bill Clinton–Loretta Lynch meeting was to quickly say, "Nothing happened, but we can understand why this looks bad, so we'll bend over backward to make it clear that we are not improperly influencing the investigation, by forsaking the attorney general's standard role in making the final decision in cases like this."

That is really the best that they could do under the circumstances, once Bill Clinton made that stupid decision to talk to Lynch. (Again, this will not satisfy the conspiracy theorists, but nothing will satisfy them.)

The more interesting question is how the Republicans would handle this kind of thing if the roles were reversed. But there is no reason to wonder, because we already know what they would do. In fact, there are plenty of instances where the Republicans have had to deal with negative facts and arguments regarding things that they say and do, and they always dig in their heels and refuse to admit that they are wrong.

Take the Benghazi investigation (from which the email server issue emerged). Inquiry after inquiry failed to show wrongdoing by Hillary Clinton, and no evidence emerged to back up the accusations about her alleged mishandling of the attack.

Yet the Republicans insisted on one last gasp, creating the "special" Benghazi committee to waste yet more time and millions of public dollars going over the same ground. When it was all over, committee Chair Trey Gowdy gave the worst performance of playing dumb that I have ever seen.

Even so, Republicans (and not just the conspiracy theorist right, assuming that the two groups are still distinguishable) are not letting this go. One Republican on the committee, even as the report was being issued, referred to Hillary Clinton as "morally reprehensible." Big surprise.

But this is now standard operating procedure for Republicans. Three years ago, they claimed that the IRS had been directed by the Obama White House to target right-wing groups, and now—with, again, multiple inquiries failing to turn up any evidence to support the Republicans' irresponsible charges—they are still using congressional resources to try to prove their point.

A minor variation on this pattern showed up after the Supreme Court decided against the state of Texas in its recent abortion case. There, the court's majority noted that the two special medical requirements that Texas imposed on abortion clinics were medically unnecessary, and it also noted that such requirements were not imposed on doctors and facilities that engaged in much more medically risky procedures.

The evidence for that conclusion was incontrovertible, but it never mattered to Republicans. They insisted throughout the case that it was all about protecting women, and even after they lost the case, they were still repeating that same discredited talking point. I understand sticking with a script, but this is ridiculous.

More to the point, this is one of the many areas in which the claim, "It's just politics, and both sides do it," is simply wrong. Consider Hillary Clinton's response to the email issue. As I noted in a Dorf on Law post when the case broke in March 2015, the immediate reaction by Clinton and her backers really was nothing short of embarrassing, with the same kind of transparently non-responsive claims that we so often see from Republicans.

Over time, however, Clinton grudgingly owned up to the facts in a way that Republicans seem incapable of doing. To be clear, I am not at all congratulating Clinton or her advisers on the way they handled the email story. Their statements and actions seemed secretive and obstructionist, and given that they eventually had to change their story, they unnecessarily fed into the trope that Clinton is "dodgy."

But it is much better to deal with people who can eventually be dragged to where they ought to be, even if it takes some time. The Republicans can certainly claim that they have been consistent, but they have been consistently wrong, and even worse, they simply make the same discredited statements over and over again.

(See also, "The people must be able to decide who the next Supreme Court justice will be." Who cares what the Constitution says?)

And as I noted in my March 2015 post about the email server, why would the Republicans want to change their ways? Being obsessed with Benghazi gave them the gift of the email server issue, in exactly the way that their pursuit of the Paula Jones case in the 1990s eventually gave them the gift of the Monica Lewinsky scandal.

Republicans have learned that all you have to do is refuse to admit that your position is wrong, and the press will treat it as a matter of mere partisan disagreement.

This really is, therefore, the end of serious discussion about the Clinton email story. But the non-serious discussion, as active as it has been for the past 16 months, has barely begun.

Republicans will surely include both the email server and Benghazi on the list of things that make Clinton supposedly untrustworthy, and they will simply ignore the fact that both of those proto-scandals (along with all of the others) have gone nowhere.

At some point, in the very near future, even many liberals will surely say things like, "I don't know, but there's something about the Clintons that makes me uncomfortable. Whitewater, the email thing, some other stuff that I can't remember, Benghazi, and what was the final word on that Vince Foster murder, anyway?"

We are now seeing, therefore, how the "throw enough feces against the wall and some of it will stick" strategy actually works. It is not necessary for any of it to stick in the sense that at least one of the accusations has merit.

At any given time, people just see a lot of shit sliding down a wall, and they think that some of it must be sticking. And this is the core political strategy of one of our two major political parties.

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, Monash University, 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.

Hillary's Emails: Much Ado About Nothing—Again | Opinion