On Friday, October 28, Hillary Clinton’s emails were yet again in the headlines when FBI Director James Comey informed Congress that he is investigating Huma Abedin’s emails due to a possible relation to the Clinton email scandal.
“Wait, what?” cry many news stations. “Wasn’t this already resolved in July? What does Anthony Weiner have to do with Clinton’s emails?”
In his letter to Congress, Comey informs Congress that he has opened a new branch of the email investigation on behalf of new emails found in the Weiner investigation. While James Comey himself admits the FBI “cannot yet assess whether or not this material may be significant,” he believes that the FBI “should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information.”Dropping a bombshell of that magnitude against the Clinton campaign just days before the election sent all sides of the media into a frenzy, particularly against director James Comey.
— Huffington Post (@HuffingtonPost) October 29, 2016
“Let’s stop thinking of James Comey as one of the Untouchables: a squeaky clean version of Dirty Harry,” Douglas Anthony Cooper writes for Huffington Post. He continues to challenge Comey’s character, “He’s the worst director of the F.B.I. since J. Edgar Hoover, and — should Hillary Clinton lose the election — he will be remembered as an even greater menace to the republic.”
In addition, Cooper brings up what he believes to be a failed “dream of bipartisanship” in this role, especially in the context of the Republican party largely being opposed to the Clintons as people, noting “I can’t think of a single Republican who could properly fill this office; none would be able to withstand the coming pressure to do everything possible to delegitimize a Clinton administration.”
In response to sentiments questioning Comey’s character, the right shines a spotlight of what appears to be leftist hypocrisy. “When Comey announced he had reopened the criminal investigation into Clinton’s emails, the Far Left threw out its glowing praise of Comey from the summer,” writes Breitbart News’ Ken Klukowski. “And is now excoriating him as a Republican political hack (news that would shock everyone involved with Republican Party politics).”
In addition to the actual character of James Comey, many liberal media outlets are more substantially questioning the constitutionality of the FBI suddenly extending the email investigation to an unrelated case to the Clinton case.
“If the FBI was searching Weiner’s computer, it presumably had a warrant authorizing the search of the computer only for Weiner’s communications with underage girls,” says Orin Kerr, a professor at The George Washington University Law School. If that is correct, going from that narrow search to a broader search of Clinton’s emails… [may defy the precedent set] in People v. Herrera (2015)” and the plain view exception.
Kerr elaborates on the concept, noting “the plain view exception does not allow evidence to be seized outside a warrant unless it is “immediately apparent” upon viewing it that it is evidence of another crime. Just looking quickly at the new evidence, there needs to be probable cause that it is evidence of a second crime to justify its seizure, which would presumably be necessary to apply for the second warrant.”
Kerr lays out the crux of the problem: whether or not the FBI can even constitutionally investigate Huma Abedin’s emails because of what appears to be a violation of her right to protection against unreasonable search and seizure.
Clark D. Cunningham, contributor to the liberal news publication Slate, further develops Kerr’s point about the plain view exception in layman’s terms. “Weiner’s laptop did not “particularly describe” emails sent to or received by Abedin while working at the State Department as material that could be seized as evidence of the alleged sexting crime… surely the FBI didn’t think Abedin was involved in the alleged sexting crime.”
In response to Senate Minority Leader Harry Reid accusing James Comey of violating the Hatch Act, media discourse has largely revolved around whether or not the FBI director violated federal law.
— CNN (@CNN) October 31, 2016
In CNN’s overview of the scandal, Steve Vladeck describes the Hatch Act as a federal law that “greatly restricts the ability of most federal employees to engage in political campaign activities…especially while on the job — or to use official authority or influence for the purpose of interfering with or affecting the result of an election” and mentions that “typical violations” of the Hatch Act “result in disciplinary action… or, in especially serious cases, termination.”
New York Times contributor Richard W. Painter supports the Senator’s sentiment and says that James Comey can be found guilty in violation of the Hatch Act because there is a clear “abuse of power for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election” and that Comey can be indicted because “an official doesn’t need to have a specific intent — or desire — to influence an election to be in violation of the Hatch Act or government ethics rules.”
Other prominent media figures feel as if the Trump campaign and Republicans put pressure on Comey to release this news as well.
“Behind Comey’s defiance of both precedent and the guidance of his boss, the attorney general, was the subtext of intense pressure being put on the FBI and the Justice Department by Republicans, some of whom rushed Comey’s vague letter to members of the press,” writes Joy-Ann Reid, host of AM Joy on MSNBC. Her comments touch the liberal notion that bipartisanship will be impossible in a Clinton administration due to Republican hostility and that the release of these emails was a media conspiracy of sorts that could be considered a violation of the Hatch Act.
Prominent Republican figures deny these accusations of media collusion and assert that James Comey’s actions are perfectly legal.
In a segment on Fox News, Judge Andrew Napolitano discusses the situation and says, “Senator Reid’s claim is way over the top and in no way implicates the Hatch Act. This is Jim Comey doing what he believes is his job. If there is an incidental effect on politics, well there’s an incidental effect on politics with everything the government does.”
Breitbart News parrots Napolitano’s statement. “Saying that the FBI cannot examine possible evidence that any candidate–including a presidential candidate–has broken the law, would essentially mean police agencies should not treat those investigation subjects the same way any private citizen would be treated.
Ben Shapiro, of the right-leaning The Daily Wire, flips the idea of toxic partisanship on Democrats in the media, satirizing the events that have unfolded in response to the resurgence of the FBI investigation. “And then there’s Senator Harry Reid, a sociopathic liar who once said Mitt Romney had paid no taxes – without evidence – and then said it worked just fine so long as Romney lost. Now Reid’s accusing Comey of violating the Hatch Act, and stating that Comey is covering up Trump’s relationship with Russia. With no evidence. And the media, naturally, are taking it seriously. Because of course they are.”
Whatever your opinion on the character of Reid, Clinton, or Comey in this sudden resurgence of the email scandal, or the legal implications behind James Comey’s actions, it will definitely be interesting to see how this weighs into presidential horse race coverage and an election that is fast approaching.
This post has been updated on Monday, November 7th, 2016 at 1:30pm ET.