On a weekend in late October in 1973, then President Richard Nixon fired the Watergate Special Prosecutor Archibald Cox, who had been demanding that he hand over tapes of White House conversations. The Attorney General Eliot Richardson resigned in protest, and the crisis which became known as the Saturday Night Massacre, set the stage for the end of the Nixon presidency. Forty three years later in October 2016, a Friday Night Massacre has thrown the Clinton candidacy into jeopardy by F.B.I. Director Comey’s letter to Congress announcing that the bureau has discovered new e-mails that may have a bearing on the investigation of Hillary Clinton.
At the moment, the U.S. is swirling with speculation. There is a great deal that we don’t know, but according to many observers, like Carl Bernstein, one of the reporters who broke the Watergate story and former New York Mayor Rudy Giuliani, something major is in the works.
What do we know? We know that the original investigation which Comey completed in July was seriously inadequate. It called no grand jury. It issued no sub-poenas. It granted unaccountable immunity to material witnesses. It allowed them to destroy evidence. At the end of it, Director Comey concluded that there was no basis to bring an indictment of Hillary Clinton.
That was in fact not a question which was within the F.B.I. director’s power to decide. It was properly the responsibility of the Attorney General Loretta Lynch, but she had been caught in a publically embarrassing predicament, and found it prudent to appear to separate herself from the decision by delegating responsibility for it to the F.B.I. director. The embarrassing predicament took place earlier in the summer, when Bill Clinton walked visibly across the runway in an airport in Arizona and appeared, apparently unexpectedly in Lynch’s private plane. He stayed for over half an hour, during which time Lynch maintains they talked about grandchildren and travel – a story which no serious observer of the American political scene could possibly believe. The Justice Department was just then considering whether or not to prosecute the Democratic candidate for president, a candidate from the same party as Barack Obama who had appointed Lynch to the post of Attorney General, the very same candidate who was the wife of her first mentor Bill Clinton who had appointed her to her first cabinet post. The question of whether to indict Clinton’s wife for breaches of national security among other things was within her Lynch’s power as Attorney General and head of the Department of Justice. The very sight of the former President entering her plane must have been an immediate reminder of what she was expected to do.
Clinton was telling her – if she needed to be told – that he expected her not to indict his wife. In this little vignette, the hand in glove cooperation of the Clintons is dramatically visible. The former President was attempting to influence Lynch’s decision by reminding her of her past debt, but if Hillary won election, as presumably she would, as the new president she would be in a position to extend Lynch’s power into the future. The Clintons were sandwiching her between past and future. Hillary Clinton was even brazen enough to make that obvious when she announced publically that if elected, she would appoint Loretta Lynch as her attorney general. Neither of the Clintons showed any discomfort with this appearance of impropriety. They have never expected to be called to account for such quids pro quo – at least not until this week. But Loretta Lynch was uncomfortable with the airport encounter. In her statement when the visit with Clinton on the plane was made public, she said the meeting was ill-considered and if she had it to again she would not have held it. That explanation begs the question that she did not choose to have the meeting in the first place. That was Bill Clinton’s idea. And her quasi apology coincidentally echoes Hillary Clinton’s explanation for having a separate e-mail server in the first place. Hillary said it was a mistake and in hindsight, it was not the best option she could have chosen. That apparently is the standard Clinton formula for “apology”.
Not being so cavalier as the Clintons, Lynch felt she had to do more to counter any imputation that she was subject to their influence. She decided to delegate responsibility for the investigation to James Comey the Director of the F.B.I. although legally it was her responsibility and hers alone. In effect she was passing the buck to her subordinate, and in the process, she thought, she could insulate herself from controversy. Comey must have felt that he had been unfairly placed in an invidious position – damned if he did and damned if he didn’t – and his action in the investigation showed the ambiguity of his position. Knowing that he couldn’t prosecute, Comey made sure he would not find any evidence to warrant a prosecution. That was why he did not call a grand jury, issued no sub-poenas and granted immunity to witnesses.
But the same time, it appears that from the beginning, Comey was not resolved to accept passively the invidious role that had been thrust upon him. He dropped several poison pills into his decision not to prosecute. He said Clinton had been extremely careless in her use of the private email server, and the reason he decided not to prosecute was that he could not prove her intent to commit a crime. Then later in his testimony before Congress, he went on to give examples of just such intent. When asked if many of Secretary Clinton’s statements were true, Comey said they were not true (perjury), and he added almost casually that Secretary Clinton had destroyed over 30,000 emails.
To anyone old enough to have followed Watergate, that statement could be reminiscent of Nixon aide’s Alexander Butterfield’s studiedly casual remark before the Watergate committee, “Oh that’ll be on the tapes.” Until then no one knew anything about the tapes. That aside was the first the Congress or the American people had heard about the White House taping system. The reason Comey’s testimony is comparable is that although Comey said he had no evidence of criminal intent, almost in the next breath he disclosed that Secretary Clinton had destroyed over 30,000 email, and as Comey knows all too well, destruction of evidence is a crime. (In fact her aides destroyed between 10 and 15 mobile phones, some of them with a hammer.)
Rudy Giuliani, who was a prosecutor before he was a mayor, recently said that destruction of evidence is prima facie evidence of criminal intent. In making those statements, Comey may have been inviting further questions, leaving himself open to be called to account for his contradictions. The combination of what he said in announcing his decision not to prosecute and in his later testimony to Congress may be what you do when you are confronted by an arbitrary and extra-legal regime which has let you know you are expected not to prosecute when you know grounds for prosecution exist and you don’t want your career to be ruined because you have become party to a cover-up.
Let us remember poor Colin Powell, a four-star general and honorable secretary of state who was forever tainted by becoming the mouthpiece for the Bush Administration’s lies about weapons of mass destruction in Iraq. Whatever may have been James Comey’s original intent, last week he declared his independence from his boss the Attorney General Loretta Lynch. She was the one who passed the responsibility for the investigation to him, but now, having discharged his unsought responsibility in ways she may not have expected, he shook himself free of her direction. She tried to stop him from writing the letter to congress, citing department regulations against commenting ongoing investigations and also against making disclosures of potentially political significance close to the time of an election. But by last Friday, Comey knew his course and sent the letter anyway.
The letter has thrown the Clinton campaign into disarray. Hillary Clinton has fought back, challenging Comey to “put his evidence on the table” or keep quiet. In saying that, Clinton is being disingenuous. She knows it is against Justice Department regulations for the Director of the F.B.I. to reveal evidence that is germane to an investigation. In challenging him to do so, she is playing “chicken”, trying to put him in an untenable position. But so far James Comey’s actions have been unexpected, and he may surprise her and call her bluff. Rudy Giuliani said he thinks Comey is going to “stick in their faces.”
Donald Trump, whose faltering campaign has been ressuscitated by the recent events, said that the Obama Justice Department “has declared war on the F.B.I.” Trump himself has exonerated Comey for what he once saw as the directors’ fecklessness in not pursuing an investigation in July. Democrats also have changed their minds about Comey. In July all the Democrats supported Comey. Now they are all attacking him.
Here at the last it is worth remembering that the beginning of the fall of Nixon was the testimony of John Dean, former White House lawyer who testified before the Watergate Committee that the President’s explanations were lies.
Elias Kulukundis, New York, 30 October 2016