The FBI’s renewed inquiry into Hillary Clinton’s emails could put the next president-elect in a very awkward place.
If Clinton wins the election, she would be tasked with appointing an attorney general who could oversee any investigations involving her. These could include her use of a private email server while she was secretary of state, the fundraising practices of the Clinton Foundation or something else altogether.
If Donald Trump wins, any notion that the inquiries swirling around Clinton would get an unbiased look would be called into question. Throughout the campaign, Trump has labeled her “crooked Hillary,” accused her of criminal conduct and said she should be in jail. During their second debate, Trump said that as president he would ask his attorney general to appoint a special prosecutor to look into Clinton’s emails.
The independent counsel statute that grew out of the Watergate scandal in the 1970s expired in 1999. But the attorney general still has the authority to appoint a special counsel when the need arises.
If Hillary wins, it would not surprise me at all if congressional Republicans say they’ve got to investigate further.
Peter Zeidenberg, former federal prosecutor
Peter Zeidenberg is a former federal prosecutor and a former deputy special counsel. He was involved in the prosecution of Lewis “Scooter” Libby, an aide in the George W. Bush White House, for his role in the outing of CIA officer Valerie Plame.
Zeidenberg called the inquiry into Clinton’s emails a “pointless exercise.” But if it were still ongoing and she were in the White House, he said, “If I were Hillary Clinton, I would be extremely loath to let my attorney general appoint a special prosecutor.”
Referring to the Whitewater investigation led by special prosecutor Kenneth Starr during the presidency of her husband, which eventually triggered Bill Clinton’s impeachment, Zeidenberg said, “She’s had it with special prosecutors. That Ken Starr thing turned into a complete fiasco.”
There are more potential complications. One Trump supporter mentioned as a potential attorney general in a Trump administration, New Jersey Gov. Chris Christie, unleashed a blistering attack against Clinton during his speech at the Republican National Convention. Throughout, his audience chanted, “Lock her up!”
Trump could face his own potential legal entanglements, possibly on taxes, investments or his foreign business connections.
Regardless of the winner next Tuesday, said Katy Harriger, who authored a book about politics and special prosecutors, “This is not only not going away, a vast majority of people will not trust whatever is decided.”
If Clinton is the next president, it’s hard to imagine a more vicious political environment. Weeks before even taking the oath, should she be elected, Republicans in the House of Representatives already appear to be savoring the prospect of four years of investigations. Sen. Ron Johnson, R-Wis., said this week that Clinton, were she to become president, should face impeachment over the email issue.
Even short of impeachment, Congress is likely to pursue its own investigations.
“There’re bound to be innumerable inquires no matter who is president now that we have made Congress involved ostensibly in criminal matters,” said Daniel Richman, a former federal prosecutor and adviser to FBI Director James Comey.
He was referring to the FBI’s investigation into Clinton’s emails. Comey has testified twice in recent months before Republican-led House panels on his decision to close the inquiry and not prosecute Clinton on charges of mishandling classified material.
Still, Comey’s decision a week ago to resume the email probe just days before the election landed like a large rock in a placid pool. It immediately created waves – polls have tightened – but what the political waters will look like Tuesday, when most voters will cast ballots, is hard to say.
The FBI is under intense pressure to complete its search of the newly discovered emails. They were found on a shared computer belonging to top Clinton aide Huma Abedin and her estranged husband, former Congressman Anthony Weiner.
Prosecutors have to go forward with blinders and try their best to avoid the political noise around them. If there are parallel investigations going on, that can create some challenges.
Eric Yaffe, former assistant U.S. attorney and trial attorney in the Department of Justice’s Public Integrity Section
How they got there remains a mystery. So does whether they contain any information beyond what investigators already know from the thousands of other emails they’ve analyzed. But it seems unlikely that the inquiry will be completed before Election Day.
In the current polarized mood, with the political tension heightened by Trump claiming that the election is rigged and the news media are in the tank for Clinton, it might not even matter.
The complications of continuing investigations related to Clinton for either a President Clinton or Trump go further still.
“It will certainly make for complex hearings for leadership positions in the Justice Department,” Richman said. “To what extent are the questions to the next attorney general going to be about” these issues?