Hillary Clinton's Emails: Republicans Revel in Another Fake Scandal

This article was first published on the Dorf on Law site.

Republicans can always be counted upon to take an advantage and push it too far. And now, having decided that Donald Trump did not respond to the FBI's conclusions in the Hillary Clinton email inquiry in the rabid way that they would have preferred, here they go again.

As I predicted, discussing the predictable aftermath of the FBI's conclusions, the serious discussion of the issues is over but "the non-serious discussion...has barely begun."

Congressional Republicans, upset that the FBI did not recommend criminal charges against Hillary Clinton, decided to drag Director James Comey in front of a committee to explain himself.

Meanwhile, House Speaker Paul Ryan, who has spent the last eight months shrinking before our very eyes, now says Clinton should be barred from classified briefings. He makes Trump look reasonable by comparison.

Similarly, as I noted when discussing the predictable aftermath of the FBI's conclusions, House Republicans will not let go of the Bill Clinton–Loretta Lynch airplane meeting either. As I wrote there, "Republicans (and not just the conspiracy-theorist right, assuming that the two groups are still distinguishable) are not letting this go."

And sure enough, the chairman of the House Judiciary Committee, Virginia Republican Robert Goodlatte, "made it clear that at a hearing with the attorney general on Tuesday, he would focus on Ms. Lynch's impromptu meeting with former President Bill Clinton, before the F.B.I.'s announcement."

It is worth taking a moment to marvel at the bizarre logic underlying this and other conspiracy theories that the Republicans are peddling. Suppose you believe that the Clintons are willing to abuse power and try to influence a sitting attorney general, and you also believe that Lynch can be so influenced.

How in the world does it follow that Bill Clinton would try to do this by walking across a tarmac to board Lynch's plane?

After all, Republicans are all too willing to believe that the Clintons are capable of anything, up to and perhaps including secretly have people murdered. So in the face of a possible criminal indictment that would permanently end both Clintons' political ambitions, we are supposed to believe that these crafty, conscience-free political operators waited until a couple of days before the investigation was complete, only then to have the former president allow himself to be seen making a supposedly illicit visit to influence the outcome?

If, as Trump claims, this was all rigged, even total amateurs would have come up with a smoother scheme than the one that Republicans claim that super-villains Bill and Hillary Clinton were carrying out here.

This is even more silly than Republicans' insistent belief that President Barack Obama's political operators thought that the best way to punish his enemies was to delay the approval of 501(c)(4) status for some tiny political groups (while letting groups run by Karl Rove and other conservative heavyweights move forward unhindered).

As I have argued many times, if I had a hatchet man who came up with the kinds of plans that Republicans have imagined, I would fire him immediately.

This is not to say that Comey's negative comments about Clinton have not given Republicans reason for cheer. Although my take was (and still is) that his scolding of Clinton was anything but devastating, plenty of people appear to disagree.

For example, The New York Times immediately ran a piece (nominally not an op-ed) on its front page saying that Comey's comments were "a ready-made attack ad." And in allowing himself to move far beyond his mandate to determine criminal culpability, Comey certainly unburdened himself of some negative comments about Clinton that must have been music to Republicans' ears.

Those attack ads are already being written, of course. What is surprising is that even the late night political satire shows are buying the Republicans' spin.

For example, after one of the conservative morning cable talk shows took comments that Hillary Clinton had made last year and spliced them together with Comey's responses, The Daily Show With Trevor Noah picked up the same theme and ran an almost identical version of the clip.

Watching that clip, however, the anti-Clinton overreach is obvious. Yes, there are some juxtapositions that really do make Clinton look bad, such as her claim that she used only one mobile device followed by Comey's claim that she used multiple devices.

I suppose that a Clinton defender could try to argue with that point, but any defense would sound legalistic at best. And why anyone should even care about that is not at all obvious, since there is no link to anything bad happening as a result.

Still, among what amounted to only a handful of supposedly devastating Comey-catches-Clinton moments, the gotchas became less and less plausible. We already know, for example, that the claim that she really did send some classified material is a murky area, because even Comey had to admit that almost all of them were not marked classified.

Comey, after all, was reduced to opining that the Clinton people simply should have known what not to send. And the big lesson that we are learning about those classified messages is the no-longer-secret fact that many government communications are ridiculously over-classified.

The video also includes Clinton saying that her team had engaged in a "thorough process" to determine which emails were work-related, whereas Comey says that Clinton's lawyers "did not individually read the content of all of her emails."

Again, I would not want to be the person on the Clinton team who would have to respond, especially with the old saw that "if you're explaining, you're losing" in mind. However, in terms of red-handedness, this is a pretty weak stuff.

She said the process was thorough. He says it was not thorough enough. And the ground shakes.

But the most ridiculous moment in the video is this she-said-he-said. Clinton: "There were no security breaches." Comey: "It is possible that hostile actors gained access to Clinton's personal email account."

That is on the list of things that Comey said that supposedly expose Clinton as a liar? She said that a bad thing did not happen, and after more than a year of investigation, he says that he does not know whether anything bad happened, but it could have?

Yet after including this non-gotcha among a list of things that sound bad in varying degrees, we then see Trevor Noah asking, to a laughing audience, "Did Hillary tell the truth about anything ?"

Noah's late-night colleague Larry Wilmore went further, playing the tape twice on his show last night. And after showing Obama lauding Clinton for having to do everything like Ginger Rogers, "backwards on heels," Wilmore actually said, "That would explain Benghazi and the emails, when you think about it. What, am I wrong?"

Not only is Wilmore wrong, but he set the land speed record for proving my prediction that even some liberals would surely include Benghazi on the list of Clinton's supposed negatives, even though she has been completely exonerated after eight highly partisan investigations of that tragedy. Once a narrative is established, it does not matter to some people whether any particular story contradicts it.

Back to the Republicans, however, who now apparently want to get Comey to admit that he should have recommended criminal charges against Clinton. The Times quoted a former Mitt Romney national security aide saying that Clinton "should be sitting in a jail cell." (Remember, Romney is the supposed grown-up among Republicans opposing Trump's irresponsible extremism.)

Comey, however, did not say, "Well, reasonable minds can differ, but the people in my office ultimately decided that this is not a strong enough case," or even, "Most prosecutors would not move forward, although I admit that some might roll the dice."

He said unequivocally that "our judgment is that no reasonable prosecutor would bring such a case." What is he going to say now, when Republicans demand that he admit that he should have gift-wrapped Clinton and delivered her to the steps of the Republican National Committee?

Comey has already gone outside of his portfolio and given Republicans some talking points that they will surely enjoy repeating. Even though the bottom line of his comments is, "There are a bunch of things here that bother me, but this was not a close call," Comey did give Republicans some political sustenance.

For Republicans, however, that is never enough. They will overplay this, as they always do.

And the one thing we know about Clinton is that, for all of her unforced errors, she thrives under attack, especially when her attackers are so embarrassingly overreaching.

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.