Month: November 2016

In a Washington Post op-ed last week, Harvard law professor and Democratic activist Lawrence Lessig maintained: The Constitution lets the electoral college choose the winner. They should choose Clinton. While this article might come across as a far-fetched provocation worthy of Steve Bannon or Breitbart News, presumably the author meant it to be taken seriously as did the Post by publishing it. In fact, liberal groups and their lawyers are engaged in several efforts to persuade electors in States won by Trump to vote instead for Clinton.

Before turning to Lessig’s specific arguments, it is useful to make a few basic points that should be self-evident but perhaps are not.

First, both Clinton and Trump went into the presidential campaign with the clear understanding that (1) the winner would be the candidate who won enough States to amass 270 electoral college votes and (2) the electors’ votes would be faithful to the popular vote results in their respective States. Given these understandings, both candidates’ campaign strategies were built around the single goal of winning an electoral college majority.

Second, these understandings reflect the fundamental rules, rooted in State law and universally accepted (up to now) by partisans on all sides, governing how presidents are elected under our Constitution. The same understandings are shared by the voters, the American public in general, the media, and everyone else. Indeed, Trump was widely and rightly condemned for refusing to say unequivocally before the election that he would accept the outcome flowing from the application of these rules.

Third, Trump won a clear electoral college majority based on these rules. Unlike the 2000 election, there appears to be little justification for challenging the result this year–shocking and unpalatable as it was to many people. The story that the Russians hacked election machinery has been largely debunked, and recounts requested on this basis seem very unlikely to change the result. Obama Administration officials have expressed confidence that the election results “accurately reflect the will of the American people.” (If recounts do somehow shift the electoral college majority to Clinton, she would win under the established rules; however, Lessig’s arguments are not based on this scenario.)

Professor Lessig’s position that Clinton should be the electoral college winner rests on two seemingly inconsistent but equally ludicrous arguments. On the one hand, he points to the fact that Clinton “won” the popular vote and asserts that the electoral college should therefore support her as the “people’s choice.” On the other hand, he argues that electoral college voters in States won by Trump can and should overrule the choice expressed by the people in those States.

Popular vote argument. Clinton’s popular vote lead, which now exceeds two million, may be a reasonable cause for debate over whether the electoral college system is anachronistic and should be changed for future presidential elections (unlikely as that is). However, it has no bearing whatever on the outcome this year since the 2016 election was not about the nationwide popular vote. Clinton’s popular vote advantage is not only legally irrelevant but also essentially meaningless. For one thing, the notion that it makes her the “people’s choice” is dubious given that she failed to win a majority of the presidential votes cast–i.e., more people voted against her than for her nationwide. Another 40 plus percent of the people eligible to vote chose not to vote at all. The more salient point, however, is that neither side campaigned to win the nationwide popular vote. If winning the popular vote had been the goal, their campaign strategies would have been quite different. It’s impossible to know which side would have emerged with the popular vote advantage campaigning under this different set of rules and strategies.

Touting Clinton’s popular vote “win” is analogous to a losing football team claiming victory because, although being outscored, it gained more total yards than its opponent. If the outcome of football games turned on yards gained rather than points scored, both teams’ strategies would be entirely different. There is no reason to assume that the same team would still wind up with more total yards in what would literally be a completely different ball game.

Likewise, a presidential election based on winning the nationwide popular vote rather than the electoral college majority would be a very different ball game. One major difference is that the campaigns would target the most populous States even if they were not competitive from an electoral college viewpoint. Another difference is that minority party voters in deep blue and deep red states would have greater incentive to go to the polls since their presidential vote now would be more likely to matter.

In short, if this year’s election actually had been a contest to win the popular vote would Clinton still have won it? The answer, of course, is there’s no way of knowing. There is certainly no reason to assume that she would have.

Electoral college discretion. Lessig’s other argument is that the framers of the Constitution intended electoral college members to be wise elders who would serve as a “safety valve” on the popular vote and either confirm or reject the people’s choice. According to him, it was originally envisioned that the electors could exercise a veto power much like that of judges who can sometimes overturn jury verdicts they consider to be unjustified. In a less than subtle reference to conspiracy theories about Trump and the Russians, Lessig says, for example, that the electors surely could intervene to block the voters’ choice if that choice was a “Manchurian candidate.” This year, he says, they should exercise their discretion to elect Clinton as the better choice as well as the people’s choice.

Even if Lessig’s assertions have some historical foundation, they are utterly foreign to our contemporary understanding of the electoral college’s role and quite inconsistent with how it actually has functioned for most of our history. Forty-eight of the 50 States plus the District of Columbia award all of their electoral college votes to the winner of the popular vote in their jurisdictions. Moreover, twenty-nine States and the District of Columbia have laws requiring that electors vote for the popular vote winner in their jurisdictions. (Lessig wholly ignores these laws, apparently believing that electing Clinton is a higher calling than abiding by the law.) Even absent an explicit legal requirement, electors have almost always been faithful to their obligation to vote for the popular vote winner in their States. Throughout the history of our country, over 99 percent of electors have complied with this obligation. 

Lessig’s description of the electors also is dead wrong. They clearly are not the elite overseers serving the lofty mission he seems to think was originally envisioned. Rather, they are typically functionaries of the political parties largely unknown to the general public. Surely no American citizen enters the voting booth with the slightest thought that their vote is subject to second-guessing and potential rejection by anonymous electoral college members. That’s why those electoral college members who on very rare occasions go against the popular vote outcome in their States are (appropriately) referred to as “faithless” electors. I have never heard them described as super wise men and women who, after all, know better than the voters and are simply correcting the voters’ mistake.

As a practical matter, I wonder if Lessig paused to consider the utter chaos that surely would result if electoral college voters actually behaved as he suggests and, by acting against the expressed will of the voters in their States as he proposes, reversed the outcome of a presidential election dictated by the established rules. No doubt this would create a crisis for our democracy far more serious than what occurred in the wake of the 2000 election.

Finally on a personal note, I am no fan of Trump. I didn’t vote for him, I was appalled by much of his campaign rhetoric, and I share the widespread concern over his fitness to serve as president (particularly in terms of personal temperament). However, I also value the Constitution, the rule of law, and the democratic process. Reading articles like Lessig’s reminds me of the lengths to which tendentious liberal legal thinkers sometimes go to twist the law and defy common sense in order to justify their preferred policy outcomes. The one silver lining to Trump’s election, in my view, is that it should keep those who embrace Lessig’s style of jurisprudence off the federal courts. While their creative arguments are often thought-provoking and worth considering as advocacy, it is far better to receive them in the form of op-eds from liberal media outlets than as binding legal opinions delivered from the federal bench.

An excellent article by a liberal Columbia University professor that addresses what I think is one of the major reasons we now have a President-elect Trump:

http://www.nytimes.com/2016/11/20/opinion/sunday/the-end-of-identity-liberalism.html?emc=eta1&_r=0

I particularly like this statement:

“National politics in healthy periods is not about ‘difference,’ it is about commonality. And it will be dominated by whoever best captures Americans’ imaginations about our shared destiny.”

 

Those outraged by Trump’s election should take a few deep breaths and chill out.

By all accounts, the election went smoothly without complaints of voter intimidation or other irregularities. Clearly Trump won the election fair and square. The shock and deep disappointment many feel in response to Trump’s election is understandable, but protests (particularly violent ones) that deny the legitimacy of the result (e.g., “Trump is not my president”) are not. As one (very liberal) columnist astutely observed, “not my president” is equivalent to saying “not my Constitution” or “not my country.” There was near universal, and entirely legitimate, outrage over Trump’s pre-election refusal to commit unequivocally to accepting the result. Undoubtedly if Clinton had prevailed and the Trump supporters were now the ones protesting, hostile editorials and other condemnations would be raining down on them from all directions.

Both Hillary Clinton and President Obama were gracious in accepting the election result, wishing Trump success, and urging Americans to keep an open mind. Trump’s opponents, bitter as they may be, should follow this example. Political pundits as well as other Trump critics in the media and elsewhere likewise should indulge in at least a modicum of open-mindedness. Their dire predictions for his presidency may eventually come to pass but they are premature now.

The election was a big win for the democratic process and a setback for special interests.

Whether or not they agree with the result, good government advocates of all political stripes should applaud one remarkable feature of this year’s presidential election: special interests did not dominate. There has been  widespread public policy concern in recent years over the outsized role in elections played by fat cat donors, super PACs, corporations and labor unions, and the armies of political operatives they finance. These powerful forces were fully deployed by Trump’s primary opponents and by the Clinton campaign during the general election. However, Trump’s disorganized, underfunded, and essentially seat-of-the-pants operation somehow prevailed at each stage. Can other candidates make this perhaps chaotic but more democratic model work again in the future or will elections revert back to business as usual?

The media’s cluelessness over the election outcome results more from superficiality and groupthink than liberal bias.

There is plenty of political bias (liberal and conservative) in the media. However, liberal bias cannot explain the media’s election analysis and prediction meltdown; both those on the left and the right overwhelmingly predicted a Clinton win. I’d suggest that a more likely cause is the shallowness and downright laziness that seems to characterize most media coverage today. Media outlets do far too little original fact-gathering and analysis. They rely much too heavily on what is fed to them by partisan sources, thereby serving as uncritical echo chambers for partisan spinmeisters rather than subjecting their spin to scrutiny. This creates a media culture of insularity and groupthink. These shortcomings are actually more serious than political bias. One can find conservative media outlets to counter liberal bias and vice-versa. However, there is no alternative source to rely on for the original reporting and critical analysis that the media often neglect to provide.

Complaints about the electoral college are futile and misplaced.

Clinton’s lead over Trump in the popular vote has triggered complaints that the electoral college is undemocratic and renewed demands for its abolition. However, the nation’s founders were not overly concerned about popular election of federal officials. Until adoption of a constitutional amendment in 1913, U.S. senators were elected by state legislators rather than by popular vote. The electoral college itself was a compromise, with the main alternative being not popular election but election of the president by Congress. One reason for this is that the founders regarded state governments, not the federal government, as the primary sources of domestic policymaking, and therefore, the entities needing to be most responsive to the citizens at large.

This original model has been turned on its head in relatively recent times, with the federal government supplanting the states as the primary source of domestic policymaking. However, the federal government of today may be approaching the breaking point. It operates literally countless programs, many of dubious effectiveness, which are supported by a hopelessly complex tax system heavily influenced by myriad special interests as well as massive deficit spending. Much social policy is dictated from Washington through regulations and conditions attached to federal spending programs. There is a widespread perception that Washington works, if at all, only for the one-percenters. One reason for the polarized federal electorate and consequent stalemate in Congress is that citizens in different regions of the country have starkly different policy views. Given these considerations, shifting more political power from the federal government back to the states and closer to the people, as originally envisioned by the Constitution, may be a better approach than quixotic efforts to abolish the electoral college.

It’s possible that Washington gridlock may ease at least a little in the coming years (for better or worse).

Republicans will now hold the presidency and both house of Congress. Their control of Congress will likely continue for the next four years. A combination of demographics and gerrymandering gives them a firm grip on the House majority, and the math for the 2018 elections (25 Democratic seats at risk versus only eight for the GOP) heavily favors them to retain their Senate majority and probably add to it. Thus, Republicans are positioned to break through the gridlock that has defined Washington in recent years. Whether they actually do much and whether their accomplishments turn out to be good or bad remains to be seen. (Perhaps the public will be yearning for a return to gridlock four years from now.) What can be said for certain is that Republicans will now own the challenges facing the nation and will no longer be able to get by as the “party of no” using a strategy based on obstructionism.

The interpersonal dynamics should be particularly interesting. It’s unclear what policies Trump will pursue or how he will attempt to govern. He seems more likely to be a pragmatist than an ideologue. Certainly he doesn’t fit the conservative mold of his supposed congressional allies. A wild card in the congressional dynamics is Chuck Schumer, who will replace Harry Reid as Senate Democratic leader. Reid was (and continues to be) a hyper-partisan, bomb-throwing political hack with no apparent interest in public policy. While also highly partisan, Schumer is considerably more policy-oriented than Reid and much more likely to be a positive force for deal-making. In particular, the combination of Speaker Paul Ryan in the House and Minority Leader Schumer in the Senate offers at least a grain of hope for thoughtful, bipartisan approaches to policymaking.

The most predictable election result is its major impact on the federal judiciary.

Whatever its other consequences, Trump’s election avoided a dramatic and long-lasting shift to the left in the ideological balance of the Supreme Court. On the eve of the presidential election, Hillary Clinton was poised to use her “bunch of litmus tests” to give liberals a decisive fifth vote on the Supreme Court and solidify liberal control of the Court for years or decades to come if additional vacancies arose during her presidency. She also would have continued the sharp leftward trend of the federal courts of appeals after eight years of Obama appointments. Trump’s surprise win completely reversed this scenario. Through his election and their retention of the Senate majority, Republicans should have full control of judicial appointments for the coming four years. They should use this manna from heaven wisely and not overreach. For starters, Republicans should avoid:

• nominees whose main qualification is being a Trump crony (e.g., Giuliani, Christie);
• nominees who have strong partisan backgrounds (e.g., Senators Cruz, Lee, and Sessions);
• extremists who are outside the legal mainstream or overtly strident and divisive (e.g., most of those already mentioned); and
• litmus tests of any kind. Selecting judges on the basis of how they will rule in a specific case or on a specific issue is inimical to judicial independence regardless of whether the outcome sought is liberal or conservative.

On the positive side, Republicans should ensure that their judicial appointees meet the highest standards of integrity and intellectual ability. They should also select appointees who adhere to jurisprudential principles ensuring that they will interpret and apply the law as set forth in the Constitution and statutes rather than bending the law to reflect their policy preferences. For example, their nominees should

• reject the concept of the Constitution as a “living” malleable document whose meaning changes with the times to accommodate contemporary social and cultural mores;
• accept that creating new constitutional rights should be left to the amendment process rather than judicial fiat;
• commit to interpreting statutes according to their text, as best it can be determined by applying standard rules of statutory construction; and
• avoid giving undue deference to legal interpretations by the executive branch. They should follow Chief Justice Marshall’s admonition in Marbury v. Madison and reaffirmed in many decisions thereafter: “It is emphatically the province and duty of the judicial department to say what the law is.”

Perhaps most importantly, nominees should approach judging with modesty, recognizing that their goal should be to function as dispassionate legal experts rather than philosopher kings/queens who readily bring to bear their personal sense of fairness, morality and justice in deciding cases. While those who focus only on obtaining conservative legal outcomes might disagree, I’d submit that the gold standard in assessing nominees should be Chief Justice John Roberts.

Future voter coalitions probably will move beyond race.

Trump’s election is widely portrayed as the revenge of white working class, non-college educated voters. One pundit described it as a “whitelash” against the Obama presidency and the nation’s changing demographics. Obviously voters are motivated by any number of factors. However, I’d suggest that Trump’s election more likely represents primarily a largely race-neutral backlash against the “establishment” and its “elites” (both Democratic and Republican) who are widely seen as not serving the needs of ordinary citizens. Moreover, I strongly suspect that in the long run working class citizens without college degrees both white and those of color will come to realize that their common concerns and interests far outweigh their differences.

A coalition along these lines is now being held back by the fog of racial discord that obscures everything else. Racial disparities in many societal outcomes are real and in urgent need of attention. However, the article of faith among many that such disparities result exclusively or even primarily from pervasive racism in America diverts attention from the underlying problems. Unfortunately, a wide range of influential sources benefit from promoting racial discord. Their ranks include ideologically-driven pundits, writers, academics, and interest groups along with some cynical race-baiting demagogues. Democrats feed the flames of racial division by pushing identity politics. The media, who thrive on conflict and bad news, also contribute. For example, they tend to re-enforce the false narrative advanced by Black Lives Matter of systematic, deliberate police efforts to oppress and even murder African-Americans.

If this all-about-race mentality could be overcome, it would be apparent that the root problems affecting both white and minority working class Americans are fundamentally similar although often different in degree of severity. Such mutual problems include: not enough well-paying blue collar jobs; lack of education and skills needed to obtain the good jobs that our global, high-tech economy offers; a breakdown in traditional family structure; the scourge of drugs; and unsafe neighborhoods. Their outlooks are also similar and feature a sense that America is not working for them, and, ultimately, the kind of feeling of desperation that fueled Trump’s election.

Republican working class voters already recognize that the establishment forces of their party do not serve their interests. They see Trump, for all his faults, as someone who speaks to their concerns. (Whether he can deliver positive results is, of course, another matter.) The Democratic establishment and its elites also are under fire. Saunders supporters demonstrated similar disenchantment with them during the primaries. Working class minorities who still provide a reliable voting block for Democrats have yet to reach this point of dissatisfaction. However, I suspect it’s only a matter of time until they do. The Democratic establishment seemingly has little to offer them beyond (1) more of the same tired programs and policies that have yet to turn things around (and may even be counterproductive), (2) battles over cultural issues having little relevance to their daily lives, and (3) a lot of largely empty race-pandering rhetoric.

If working class whites and minorities do eventually unite, they would form a dominant voting block for whichever party embraces them and seriously attempts to address their issues This coalition would be even stronger if joined by younger Sanders-type voters who may be starting to see that they and their families will suffer the consequences of today’s financially unsustainable federal entitlement programs, which neither party’s establishment shows much interest in reforming.

FBI Director Comey acted appropriately (given his July pronouncement and follow-up testimony) in notifying Congress of the newly-discovered emails that may prove relevant to the investigation of Clinton’s email practices. The widespread criticisms that he violated Justice Department policy and even the Hatch Act by so doing cannot withstand scrutiny. However, the leaks coming out of the FBI concerning this and other Clinton-related investigations are outrageous. These leaks are grossly unfair to Clinton, and even worse, threaten to do long term damage to the FBI’s reputation as a nonpartisan, highly professional organization.

As the Washington Post editorialized today, Comey needs to get control of the Bureau. The leaks should be promptly and aggressively investigated; those responsible for them should be fired, and if warranted, prosecuted. These disgusting leaks reinforce the impression that the FBI as well as main Justice are at sea in attempting to handle the various Clinton-related investigations through their regular processes. This, in turn, further demonstrates the need to turn the Clinton email investigation, and perhaps all Clinton-related investigations, over to a special prosecutor ASAP. The need for this will be even more manifest if Clinton becomes president-elect next week.

The Clinton camp’s response to FBI Director Comey’s October 28 letter to Congress  concerning the newly-discovered trove of emails that may be pertinent to the Bureau’s investigation of Clinton’s email practices was to orchestrate an all-out war against Comey. This strategy features direct attacks on him by Clinton and her campaign accompanied by a flood of op-eds and similar pronouncements by others condemning his action. The efforts to discredit Comey have been widely embraced by pro-Clinton media outlets, although even the Washington Post has now apparently had enough of it.

One can certainly question Comey’s exercise of judgment at various stages of the Clinton email investigation, but there is no call to challenge his integrity. The serial accusations that he acted for political reasons and in violation of Justice Department policy or even federal law are baseless.  The most salient evidence of this–wholly ignored by the critics–is that top Justice officials, when consulted in advance, allowed Comey to submit his letter. Clearly they had the authority to prevent him from sending the letter, and indeed a duty to do so if they regarded this proposed action as the egregious violation of departmental policy and federal law that critics allege.

The attacks on Comey are not only spurious but strongly suggest a “kill the messenger” strategy designed to divert attention from the real issues that the belated discovery of these emails poses. One of these issues is why the new emails did not come to light during the original investigation. Another issue is whether the demonization of Comey by Clinton and her allies will make it impossible for him to continue to serve out his term as FBI director if she is elected president.

Finally, the unrelenting politicization of the Clinton email investigation by partisans on both sides has thoroughly undercut the ability of the FBI director and the attorney general to produce an investigative result that can inspire widespread public trust and confidence. At this point, the only way to achieve that goal is to turn the entire investigation over to an independent special prosecutor.

Each of these points is discussed in more detail below.

Stop the bogus personal attacks on Comey

In assessing Comey’s conduct, it is important to focus on his actual words and actions rather than the partisan spin that surrounds them. In July, Comey announced the results of the FBI’s investigation into Clinton’s email practices and famously concluded that “no reasonable prosecutor” would indict her based on the investigation’s findings. In congressional testimony shortly thereafter, he stated under oath that the FBI’s investigation was complete. Comey has said that he was obligated to submit his October 28 letter because discovery of the new potentially relevant emails necessitated additional investigation. This, of course, rendered his previous testimony that the investigation was complete inaccurate.

Contrary to many criticisms, Comey’s letter is not vague or ambiguous; nor does it consist of innuendo. The letter states straightforwardly that new apparently pertinent additional emails have been discovered, that these emails may or may not prove to be significant to the Clinton investigation, and that they will be assessed in order to determine their significance if any. In this regard, the substance of his brief letter bears quoting:

“In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

“Although the FBI cannot yet assess whether or not this material may be significant and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.”

An actual reading of the letter suggests that it has been both over-hyped by Clinton opponents and over-condemned by Clinton and her supporters. The media has echoed and amplified these partisan overreactions. Critics and media outlets complain that Comey should have said more and demand that he immediately release additional information about the emails. But what more could he reasonably say or do at this time? The key question of whether the emails are in fact significant to the Clinton investigation obviously cannot be answered until they are analyzed. It would be totally irresponsible for Comey to speculate about the outcome of the FBI’s analysis, disclose snippets of information, or release the emails (some of which may contain classified information) before they can be fully and carefully reviewed.

Most troubling of all are the widespread but false accusations that Comey’s actions violated federal policy or even federal law. As to the first, critics accuse him of violating Justice Department policy by sending his letter within 60 days before the election. Unfortunately, this accusation has not received the scrutiny (particularly by media fact-checkers) that it deserves. Consider the following:

• The Justice Department policy in question is contained in a March 2012 memo from former Attorney General Eric Holder to all Justice employees. However, this memo does not even literally apply to the Clinton email investigation; it is addressed to prosecutions of election-related crimes such as those involving campaign finance laws and corruption of election processes.

• In any event, the memo places no substantive restrictions on what investigative and prosecutorial actions can be taken or when they can occur in relation to elections. It simply recites the obvious admonition that employees should not time their actions (whatever and whenever they may be) for the purpose of influencing an election or favoring one candidate or party. Importantly, the memo deals only with the purpose underlying the timing of actions not their effects. Presumably this is because any and all actions in an election-related case, including a delay or refusal to act, could have an effect on the election.

• The memo says nothing about a moratorium on taking action or releasing information within 60 days (or any other time period) before an election. According to Politifact, the 60-day moratorium critics accuse Comey of violating is an “unwritten guideline” among U.S. attorneys. It is perhaps a somewhat dubious one at that, or at the very least not a hard and fast rule. Politifact’s lone source for the existence of this informal guideline is a statement by former Chicago U.S. Attorney Patrick Fitzgerald at a law school symposium that actually mocked it: “In Chicago, corruption can be a volume business, so why shut it down for 60 days? When you threaten a witness, we will charge and get the handcuffs on you as quickly as possible.”

• There is no credible basis to conclude that Comey sent his October 28 letter for the purpose of influencing the presidential election. On the contrary, there is every reason to believe that he was as chagrined as anyone when the new emails turned up, thereby undercutting his congressional testimony, and to accept his perfectly plausible explanation that he felt obliged at this point to correct his testimony, which was now inaccurate. Indeed, it has been reported that Justice Department rules required Comey to correct his testimony.

• One further point is perhaps the most significant of all. Critics note that top Justice officials whom Comey consulted in advance strongly advised against sending the letter; however, they ignore the more telling fact that these officials left the final decision to him. While the FBI director has an unusual degree of independence, he still reports to the attorney general, who is his boss, and is fully subject to her direction. If the attorney general believed that sending the letter would violate Justice policy, and particularly if she viewed it as the egregious violation critics assert, she had ample authority—indeed a clear duty—to order him not to send it. (If the attorney general felt conflicted from acting in this situation, the deputy attorney general could have given the order.) Had Comey sent his letter in defiance of an order from the attorney general or deputy not to do so, this would be an entirely different matter. However, the fact that these officials allowed Comey to send the letter necessarily indicates either that they did not consider this action a violation of Justice policy or makes them complicit in the violation and, given their positions of control, ultimately responsible for it.

The accusation that Comey violated the Hatch Act by sending the letter is similarly unfounded. The Hatch Act provides in relevant part that a federal employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election” (5 U.S.C. 7323(a)(1)). As discussed above, there is no basis to attribute such a purpose to Comey. Moreover, if this was the purpose, the attorney general and/or her deputy would be complicit in the Hatch Act violation. It is also worth noting that those accusing Comey of a Hatch Act violation now made no claim that his July action effectively exonerating Clinton from criminal liability was done for purposes of influencing the election in violation of the Hatch Act, even though the July action was far more significant.

Finally, some critics speculate that Comey caved to pressure from congressional Republicans or dissidents within the FBI. This speculation seems laughable. Whatever one thinks of Comey, there is no questioning his fortitude. Had he feared political pressure or internal criticism, Comey surely would have taken the easy way out in July and simply reported his findings to Justice without making a public recommendation and thereby painting a huge target on his back. Moreover, he showed not the slightest sign of intimidation during the nasty and intensely partisan congressional hearings that followed his July statement.

In sum, Comey’s action in sending the October 28 letter, whether advisable or inadvisable, was a good faith judgment call rather than an effort to sway the presidential election. As such, it did not violate any policy or law.

Why did the newly-found emails just turn up now?

Press reports indicate that the new emails were found on Anthony Weiner’s laptop and number in the tens or even hundreds of thousands. How could such a massive trove of potentially relevant emails be completely overlooked in the original investigation? The answer to this question may turn out to be more interesting than the content of the emails. It’s obviously premature to speculate about this; perhaps a definitive explanation will never be found. However, one would hope that this question will be pursued. The lines of inquiry likely would focus on investigative shortcomings on the part of the FBI, disclosure shortcomings (intentional or otherwise) on the part of one or more witnesses or their representatives, or some combination of these factors. In any event, if this latest email fiasco turns into an “October surprise” that impacts the election, the blame should fall on whomever (if anyone) is found responsible for their belated appearance.

Could Comey and Clinton coexist in a new administration?

Another potential consequence of this latest Clinton email fiasco has not yet received attention but looms large for the future. Comey’s statutory 10-year term of office extends through the term of the next president and well beyond. By choosing to demonize Comey, Clinton almost surely made it untenable for him to continue as FBI director if she is elected president. It is hard to imagine how Clinton could express confidence in Comey given her attacks on him and those of her supporters. It is equally hard to imagine how Comey could serve effectively without the confidence of the president. Further complicating the situation (to say the least) is the possibility that, with the discovery of the new emails, the Clinton investigation could carry over into the next president’s term. Even if the investigation is closed once and for all by the time of the inauguration, there seems little chance of forging a constructive working relationship between Clinton and Comey given all the baggage developed this year.

Time for a special prosecutor

Due to the relentless politicization of the Clinton email investigation by both the pro- and anti-Clinton forces, there is little hope that the matter can be resolved through the standard federal law enforcement processes in a way that will garner public trust. Unfortunately, first Republicans and now Democrats, along with much of the media, have turned Comey into a political piñata and thus severely undermined his credibility. The credibility of Attorney General Lynch also has been compromised. Her ill-considered airport meeting with Bill Clinton has, fairly or unfairly, limited her ability to contribute to and oversee the FBI investigation. Concerns also have been raised about whether Justice has fully cooperated with the FBI in the investigation. Most recently, there are concerns that Justice is now seeking to push review of the of new emails too quickly, risking a possibly premature resolution, in order to wrap it up before the election.

Given all of this, the only way to salvage an outcome from this mess that can achieve widespread bipartisan and public acceptance is to turn the investigation over to an independent special prosecutor. Special prosecutors do not have a great track record in recent decades and should be used only as a last resort. However, if ever there was a situation that cries out for one it is this fiasco. The Obama Administration should immediately take steps to have a special prosecutor appointed to review the newly discovered emails at a minimum and perhaps to take a fresh overall look at the investigation’s findings and recommendations. The goal should be to resolve the entire matter as soon as possible and, ideally, before the beginning of the next president’s term.