Hillary Clinton Will Not Be Indicted

Hillary Clinton can now quote Richard Nixon: "I am not a crook." After an extensive investigation that lasted a year, FBI Director James Comey said yesterday that the Bureau would recommend not indicting Clinton as a result of her using a private email server. He said she was extremely careless and might have put national security at risk, but that he was simply following the law and she didn't break it.

The law does not make being careless with classified information a crime. To reach the level of an actual felony, three factors have to be present. First, there has to be an intentional mishandling of classified information. Being sloppy is not enough. Second, there has to be a large amount of classified information exposed. About 110 of her more than 30,000 emails were classified at the time she sent or received them, but almost none were marked as such. Many more were classified months or years later, a common government practice. Third, there has to be some indication of disloyalty to the United States or else obstruction of justice. Nothing like that was present in her case. The DoJ prosecutors will next have to decide whether to indict, but Comey said that no reasonable prosecutor would indict someone for what she did. Attorney General Loretta Lynch has the final say, and she already stated that she would follow the FBI's recommendation. Thus, it is virtually certain that Clinton will not be indicted. There will be much partisan yelling and screaming in the coming weeks and months, but in the end, she dodged the bullet.

While it is not unprecendented for someone lower down the totem pole than the attorney general to announce the findings of an investigation—special prosecutor Patrick Fitzgerald announced the results of his investigation of Scooter Libby for obstructing justice himself—it is extremely rare. Comey knew that going public was a gamble. No matter what the Bureau's conclusion was, half the country was going to call it a fraud. His concern was saving the FBI's reputation in a highly political case and he felt that transparency was the best way to achieve this. The fact that Comey is himself a Republican who was initially appointed to the DoJ leadership by George W. Bush helps deflect criticism that he is simply in the tank for Clinton. He also knew that if he criticized her for being stupid and arrogant, his comments would not seem like a complete whitewash. But as he pointed out, being stupid and arrogant is not a crime. If it were, many members of Congress would be in prison. Politico has a long background piece on how Comey made his decision and what factors went into it. (V)

Republicans Take Non-Indictment Poorly

Speaking of partisan yelling and screaming, the GOP does not seem to have gotten the message that you win some, and you lose some, because they are not happy that Hillary Clinton will not be charged in connection with her email server, and they are not planning to let the matter drop anytime soon.

To start, as anyone who has not spent the past six months in a coma could have predicted, Donald Trump had quite a bit to say about Tuesday's announcement. He declared that, no matter what the FBI says, Hillary Clinton is guilty and that her non-indictment proves that "we have a rigged system." He also said that Clinton bribed Attorney General Loretta Lynch with an offer of a job in her administration in exchange for being let off the hook. Never mind that Trump has no evidence for this, nor that Lynch did not manage the investigation.

Quite a few of Trump's primary season opponents also weighed in on the news. Sen. Ted Cruz (R-TX) called the integrity of FBI Director James Comey into question. Ben Carson blasted Clinton's judgment, and said the report made clear that she is not fit to be president. Carly Fiorina was a bit more dramatic, tweeting that, "It's not just a miscarriage of justice, but a blow to the very heart of our democracy." Sen. Marco Rubio (R-FL) declared that a "nexus of corruption" surrounds Clinton. Sen. Rand Paul (R-KY) authored an op-ed for Time in which he insisted that "the rule of law has been shattered." He's a doctor, not a lawyer, so although he might be able to diagnose a broken bone, he might not be as good diagnosing a broken law.

Meanwhile, Congressional Republicans made clear that they intend to open a new investigation into the e-mail server, with Speaker Paul Ryan (R-WI) promising that Comey would be called before the House of Representatives to answer for himself.

Undoubtedly, the GOP wants to keep the e-mail server in the news for as long as is possible, and Congressional hearings would certainly do that. However, those hearings would also be a supremely bad idea. Whatever damage that emailgate is going to do has already been done—those who are going to hold the server against Clinton, and those who are going to overlook it, have already made their decisions. Short of a game-changer, like an indictment, not much is going to change on that front. However, holding hearings after the FBI has made its recommendation, along with the Benghazi hearings, and the Merrick Garland obstruction, would give the Democrats a powerful argument that the Republican members of Congress are less interested in doing their jobs than they are in abusing their positions of power in service of partisan ends. One can scarcely imagine something that would do more to help the blue team in their efforts to retake the legislature. (Z)

Sanders Still Won't Quit

Sen. Bernie Sanders (I-VT)'s last hope was that Hillary Clinton would be indicted and the Democrats would rally around him (rather than around Joe Biden). Now that this last hope has been smashed, is Sanders finally dropping out? Nope. Even after Comey's announcement, Sanders refused to concede and said he would take his fight to the convention. It is likely that in the coming days many Democrats are going to be pointing out to him that he lost and is behaving like a sore loser. (V)

A New Proposal for Conservatives: Don't Run Anyone for President

Conservatives are beside themselves with the potential nomination of Donald Trump. They see two choices, both awful. First, pretend to support Trump and be tarred by his lack of principles for years. Second, start a delegate revolt at the convention, which could fracture the party for even longer. Now, The Resurgent has come up with a new proposal: All the delegates should abstain from voting for anyone on the first ballot, the second ballot, and all subsequent ballots. They should not nominate a candidate for president at all. Just let Clinton run unopposed by any Republican, much as the Democrats are not running any candidate to oppose Sen. John Hoeven (R-ND). In this way, the Republicans can end the year with their dignity intact and prepare for 2020. It is a radical proposal, and is not likely to get much traction at the convention, but it does show how desperate some conservatives are. (V)

Clinton Gets Obama's Email List

Donald Trump may not understand this, but all professional political operatives know very well that data are the lifeblood of modern political campaigns and that a national database of all voters is worth its weight in gold (actually, more than that, since data don't weigh much unless you include the weight of the server). Imagine that the database includes the following information:

• Joe Smith: 59, registered Republican, owns a pickup truck, subscribes to Guns & Ammo, belongs to a church
• Mary Jones: 35, registered Democrat, works for ACLU, member of the Sierra Club, donated big time to Obama
• Tom Wilson: 40, independent, spotty voting record, donated to Romney but also to Chuck Schumer in 2012
• Ellen Thompson: 71, when contacted by an Obama volunteer in 2012, she was wearing a Romney T-shirt
• Bill Johnson: 18, not registered to vote, was arrested demonstrating for Black Lives Matter this year

What does this information tell a Democratic campaign? First, sending email to Joe or Ellen is a waste of bits. Second, sending a fundraising pitch to Mary is an excellent idea. Third, having a volunteer visit Tom in person to explain how important voting in this election is and why Clinton is worth voting for is a top priority. Fourth, getting a deputy registrar to visit Bill with a voter registration form is a very good idea. Now, realize the database covers almost every voter in America. Then you can begin to understand what an incredible resource it is. Imagine that when volunteers are out campaigning in a precinct, they have a printout for all the voters in their territory. It allows them to avoid knocking on doors that, for better or worse, are a waste of time. They can focus entirely on people who might be persuaded to vote the way they want and/or make a donation. Absent this printout, the volunteers end up wasting a lot of time.

Many people think that Obama won in 2008 and 2012 because he is a good speaker, etc. That's part of it, but insiders know that he also won due to his unmatched database that allowed his team to focus like a laser on potential donors and persuadable voters. Clinton already has access to Obama's 2012 database.

Another key data resource is a list of the email addresses of people who have donated to your party in the past. Hillary Clinton was just given Obama's list containing 20 million addresses. Obama raised $500 million using this list in 2012 and Clinton hopes it will work for her, too. Romney probably has a mailing list as well, but considering that he can't stand Trump, it is very unlikely The Donald will get anywhere near it. (V)

Trump Praises Saddam Hussein

Donald Trump, who has a fondness for dictators of various stripes, had some unexpected praise for Saddam Hussein on Wednesday. After explaining that, "He was a bad guy—really bad guy," The Donald noted admiringly that, "He killed terrorists. He did that so good. They didn't read them the rights. They didn't talk. They were terrorists." So, it would seem that Trump not only likes strongmen, but that he also has little use for due process.

Meanwhile, Paul Ryan, who was delighted to find himself on the same page as Trump regarding Hillary Clinton's email server, was once again forced to distance himself from his party's nominee. "He was one of the 20th century's most evil people," said a visibly frustrated Ryan in a late Tuesday interview with Fox News. "He committed mass genocide against his own people using chemical weapons." Oh, well, that GOP unity was nice for the six hours that it lasted. (Z)

Clinton Either Crushing Trump or It's Tied

Two new polls highlight the dangers of looking at national polls, particularly this early when the race is in flux and things are changing daily. A Reuters/Ipsos poll released yesterday shows Hillary Clinton leading Donald Trump 46% to 33%. On the other hand, a Morning Consult poll also released yesterday said, no, it's Clinton 38% and Trump 37%, with 11% going to Libertarian Gary Johnson. Both polls were taken before FBI Directory Comey made his announcement that the Bureau was going to recommend that Hillary Clinton not be indicted.

For better or worse, polling is a tricky business, with a mix of landline polls, landline + cell polls, robopolls, and Internet polls, including some done by partisan pollsters. The gold standard is live interviewers calling both landlines and cell phones, but with response rates in the range of 5-10% now, a pollster may have to call 10,000 to 20,000 people to get 1,000 valid responses. This is an expensive undertaking, which leads to robopolls (which, by law, may not call cell phones) and Internet polls, which are harder to get right. Once we start tracking the state polls in a few weeks, we will average recent polls, hopefully removing some of the noise. (V)

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---The Votemaster and Zenger