The Impact of Comey's Unconstitutional Intervention In The Election

United States Constitution
United States Constitution

I. CONTEXT and CIRCUMSTANCE

With eleven days to go before election day, the director of the Federal Bureau of Investigation, James Comey--apparently responsible to no one else in the government--made an unprecedented decision to insert the bureau into the 2016 presidential campaign while early voting was underway. For nine days--October 28-November 6--the citizens of this country had virtually nothing to go on but reports attributed to anonymous law enforcement officials.

In an ambiguous letter, sent to some Congressional committee chairmen and ranking members on October 28, Comey stated that the bureau had not yet determined whether or not this material may be significant, implying that a new development upsetting the presidential campaign might ultimately have no impact on the concluded (as of July 5) investigation into former Secretary of State Hillary Clinton's classified email. And, indeed, it did not.

Comey had not even read the referenced, separate Anthony Weiner file, in order to determine what might be pertinent or significant to the Clinton case! But he told FBI employees on that same Friday, October 28, that he had felt obligated to send notice to Congress out of an "abundance of caution." One might add an abundance of hubris.

His vague pronouncements were to dominate the news cycle for the next nine days, sparking renewal of the earlier narrative that Clinton was under federal investigation. It is indisputable that millions of voters went to the polls under a false impression that there was new evidence against Clinton, showing possible criminality.

In the course of those nine days, Clinton's widely-reported substantial lead in the polls over Donald Trump was checked. Comey had put his thumb on the scales!

While he disappointed conservatives when announcing on July 5 that the FBI would not recommend charges be brought against Clinton, Comey had taken the unusual step of publicly condemning her behavior as

extremely careless.

Much of the criticism of Comey's October 28 intervention broke along partisan lines, with almost 100 former federal prosecutors and Justice Department officials of both parties signing an open letter about Comey's decision to release information about a new inquiry just days before the election:

Many of us have worked with Director Comey; all of us respect him. ***But his unprecedented decision to publicly comment on evidence in what may be an ongoing inquiry just eleven days before a presidential election leaves us both astonished and perplexed.

II. FIRST CONSEQUENCE

The political damage had been done, as surely Comey could have anticipated. There was no way to clear up the matter, expeditiously. The bell could not be unrung.

Had any high official in the Justice Department seriously contemplated that Clinton would then be indicted--by a Justice Department prosecutor--since Comey had had no national security grounds to hang it on back in the summer? But a cloud had been floated.

And the stage was set for the specter of a severely divided government after the election--under which there would be no confirmation of a new, ninth member of the Supreme Court.

By not performing due diligence, without at least having taken a peek at the contents of the Weiner file--discovering a blockbuster national security issue directly tied to the former Secretary of State?--Comey went rogue without the approval of Attorney General Loretta Lynch.

III. ULTIMATE CONSEQUENCE

It is not my purpose to challenge the electoral vote count that has made Donald Trump the President-elect, although the definitive count is relevant to my main argument.

The extra-constitutional intrusion of FBI director Comey into the presidential election--eleven days before Election Day (only to reverse himself on November 6)--spread the false impression that the investigation into her emails had been re-opened.

The negative news undoubtedly shaved 1-2 points off her eventual totals in several "swinging swing" states where the presidential race proved to be very close--especially in three of those states in the red corridor (or wall) running from Pennsylvania to Ohio to Michigan to Wisconsin--and in which vote spreads were to be measured in decimal points.

According to The Washington Post, almost two-thirds of Americans (63 percent) said that Clinton's

use of private email

had bothered them. Among that group, Trump won 70 percent to 24 percent. Comparable polling figures for individual states are not yet available.

IV. Decimal Points and Votes: WHAT MIGHT HAVE BEEN

In turn, the tighter presidential race adversely impacted close Senate races in Pennsylvania and Wisconsin; and also New Hampshire--with a combined total of 34 electoral votes. In the latter, Clinton finished with a lead of +.3 and the Democratic Senate candidate (Gov. Hassan) with a lead of +.1 over Republican Sen. Ayotte.

The loss of 2 Senate seats by Democrats running against Republican incumbents (Sen.Toomey over Katie McGinty in Pennsylvania, and Sen. Johnson over former Sen. Russ Feingold in Wisconsin) probably cost Democrats 50-50 divided control of the Senate. That outcome would have enhanced their leverage in choosing a new Supreme Court Justice.

A re-count of the presidential and Senate returns in Wisconsin (+1.0 Trump and + 3.4 Johnson) and in Pennsylvania (+1.2 Trump and +1.7 Toomey), that conceivably might have resulted in a 50-50 Senate, is contingent upon restrictive numerical

triggers

in state law: the secretary of state shall order a recount if the unofficial results reflect that the losing candidate lost by 0.25 % (Wisconsin) or 0.5 % (Pennsylvania) of all votes cast for the office.

[By comparison, Clinton lost in Pennsylvania by 68,236 or 1.2%; in Wisconsin by 27,257 or 1.0%--and, in Michigan, by 11,837 or 0.3%.]

Of incidental note: As reported by David Leonhardt of the New York Times in a November 11 online newsletter:

Hillary Clinton didn't just win the popular vote. She won it by a substantial margin. By the time all the ballots are counted, she seems likely to be ahead by more than 2 million votes and more than 1.5 percentage points, according to Nate Cohn. She will have won by a wider percentage margin than not only Al Gore in 2000 but also Richard Nixon in 1968 and John F. Kennedy in 1960.

V. CONCLUSION

The current electoral vote projection is Trump=305; Clinton=233. If Clinton had won Pennsylvania and Michigan--totaling 36 electoral votes--she could have tied Trump in electoral votes: 269-269. If she had won Wisconsin, as well, she would have been elected President by nine electoral votes: 279-259.

The current projection of party division in the Senate is: 52 (R)-48 (D).

In thinking about the latest FBI review that cleared Clinton in the email inquiry two days before the election, consider how many million ballots were cast with the October 28 proclamation of the director prominent in their minds. How many voted early, or mailed in their vote, assuming that a smoking gun was hidden in the thousands of emails on Anthony Weiner's computer?

Moreover, how many races, down ballot, were seriously impacted by the reckless statement and the imagined implications of the words uttered by the director of the F.B.I. on October 28?

These questions still hang over this election. While their answers are ultimately, definitively, unknowable, the consequences of one wrong speculation, now shown to be wholly unfounded, are undeniable.

Under the separation of powers, three institutions have been impacted by the FBI sting operation: the Senate, an evenly divided Supreme Court, and the Presidency. High stakes !!! The Comey Coup was a coup against the Constitution.

END