RUTHFULLY YOURS

I have never been a fan of the notion – at the Justice Department, it is the received wisdom – that the election calendar should factor into criminal investigations.

Law-enforcement people will tell you that taking action too close to Election Day can affect the outcome of the vote; therefore, it should not be done because law enforcement is supposed to be apolitical. But of course, not taking action one would take but for the political timing is as political as it gets. To my mind, it is more political because the negatively affected candidate is denied any opportunity to rebut the law-enforcement action publicly.

The unavoidable fact of the matter is that, through no fault of law enforcement, investigations of political corruption are inherently political. Thus, I’ve always thought the best thing to do is bring the case when it’s ready, don’t bring it if it’s not ready, and don’t worry about the calendar any more than is required by the principle of avoiding the appearance of impropriety.

A problem arises, however, when you start bending other rules. FBI Director James Comey bent a few of them when he decided to (a) make a public recommendation against prosecution, (b) nevertheless make a public disclosure of the evidence amassed by the FBI, and (c) include a public announcement that the investigation was closed.

All of this is highly irregular. Director Comey says he is “a big fan of transparency,” and aren’t we all? But transparency is like virtually everything else we applaud: it is not an absolute value; it has its place and its limitations.

Criminal investigations are not supposed to be transparent. There are very good reasons why, for example, grand jury proceedings are secret. They are the same good reasons why the FBI generally protects the identity of sources of information. If people come to believe their cooperation with law enforcement is inevitably going to result in the publicizing of their communications with agents or their testimony in the grand jury – even if there is no indictment or trial – then they are going to be considerably less cooperative.

That would significantly harm the mission of law enforcement. That, in turn, would badly damage the rule of law.

FBI director James Comey really stepped in it. He should have known that cleaning up one of Hillary Clinton’s messes would be just like wiping that proverbial dog poop off your shoe. You think you’ve got it, but there is always some left over in the tread that you track into the house. The wife yells, and then you’re on your hands and knees with the carpet cleaner while your oversized Rottweiler puppy tries to eat the filthy rag. Welcome to my life…but I digress.

Over a long career, Comey carefully cultivated a reputation for smarts and probity. Perhaps it was truly earned, more likely the result of basic competence combined with clever politicking and strategic sycophancy. Either way, it earned him his current job and, as standing in D.C. goes, an enviable combination of power and respect on both sides of the aisle.

Comey was no stranger to Hillary’s machinations. He was part of the team that investigated Whitewater only to recommend that no charges be filed. Confronted with Hillary Clinton’s email corruption, Comey tried to be too clever by half. He accompanied his legally and bureaucratically inappropriate exoneration of Clinton in July with a public tongue-lashing intended to preserve his Boy Scout image while letting Clinton, himself, and his agency off a sharp political hook. He rather spectacularly failed.

Comey’s letter to the Senate last Friday announcing that the FBI was reopening the email investigation that he closed so confidently in July has placed the nation into a constitutional crisis regardless of what the emails actually say, or the outcome of any further investigation or criminal proceedings. The mere fact that FBI agents found problematic emails on at least one computer owned by Huma Abedin (Hillary’s closest aide) and her estranged pederast husband, former Democrat New York congressman Anthony Weiner, after voting in the election has begun, ensures that regardless of outcome, the result will not be accepted as legitimate by a significant portion of the American public.

The political and media hyperventilation over Donald Trump’s refusal to commit to accepting the November result now appears doubly hypocritical and misplaced. Hillary and her allies are already lambasting Comey – their erstwhile former hero – for inserting himself into the race less than two weeks before Election Day. Are Hillary and her supporters now prepared to accept the election result if Trump pulls out a come-from-behind win thanks in part to public misgivings over the renewed investigation? And should Hillary win, it goes without saying that Trump and Republicans in general will have legitimate reasons to question a result that makes a person under active criminal investigation President-Elect.

Obviously, this election cycle has evolved into a circus of corruption. The mud-slinging is interminable, filled with duck and run operations, outright fraud, and lawlessness. In a little over a week, by hook or crook, we will know the winner of the presidential election. The question is, will it be fair, or is the voting rigged? In the State of Washington, it is hard to tell. There are so many avenues for potential dishonesty.

This week, I took the time to personally carry my “mail-in ballot” to the local voting office in King County, Washington. The state instituted its slick new balloting system several years ago. However, the way they handle ballots is extraordinarily disturbing. Here’s what happened.

Entering the building, my husband and I were met by a cadre of temporary employees steering citizens to various areas. The woman who approached me appeared stern, as if I wasn’t supposed to be there, and asked what my business was. I replied, “I would like to hand-deliver my ballot to the election office.” Her response was, “Oh, that’s unnecessary. All you have to do is drop it in the repository in the parking lot.”

Aware of this practice, I balked.

A large steel box has been placed at the end of the parking area (over 50 yards from the front door), abutting the freeway, near a far corner of the building. Guiding me to the window, she pointed out a large white and blue steel container with a slot in it, somewhat like an oversized U.S. Postal Service mailbox. I turned to her and said, very patiently, “No…I want to hand-deliver it to an election official. I am not comfortable with drive-by voting.”

She banally replied, “But that’s the way we are set up to collect ballots.”

FBI Director James Comey’s revelation on Friday that the bureau was reviewing new evidence related to a previously completed investigation of Hillary Clinton’s email practices roiled the presidential race just 11 days before Election Day. It also provided the latest chapter in a long history of October Surprises.

Republicans seized on Mr. Comey’s notification to Congress to attempt to reinvigorate Donald Trump’s campaign, while Mrs. Clinton and other Democrats challenged the Federal Bureau of Investigation to release the pertinent evidence promptly.

The October Surprise has been a staple of American politics for decades. The phrase refers to an 11th-hour revelation or turn of events that, whether intentionally or not, has the potential to shift the direction of the presidential race. Sometimes October Surprises appear to have altered the course of a campaign, sometimes not.

Here are notable examples:
1972

In October 1972, Richard Nixon was coasting to re-election against Democratic South Dakota Sen. George McGovern; polling showed him leading by as much as 26 points that month.

Though his campaign seemed little in need of a late boost, on Oct. 26, Nixon’s national security adviser Henry Kissinger declared “peace is at hand” in Vietnam, and that a final cease-fire agreement with the North Vietnamese communists could be reached within days.

Rather than applaud the Nixon administration, Mr. McGovern credited the anti-war movement for the development. He questioned why it had taken Nixon four years to “put an end to this tragic war” and declined to speculate on the effect on his chances at winning the election.

Mr. Nixon won re-election in one of the most lopsided landslides in U.S. history. And peace wasn’t, in fact, at hand. The war continued another 2½ years, ending with the fall of Saigon, now known as Ho Chi Minh City, in April 1975.
1980

The release of U.S. hostages in Iran was the October Surprise that never surprised.

In November 1979, Iranian student activists stormed the U.S. embassy in Tehran and took 52 Americans hostage. The Americans were still held a year later. In the thick of President Jimmy Carter’s re-election campaign against former California Gov. Ronald Reagan, Mr. Reagan warned repeatedly that Mr. Carter would unveil an “October Surprise” to turn the election around at the last minute, possibly securing the release of some or all of the hostages.

“Presidents can make things happen, you know,” Mr. Reagan said in a Florida television interview on Oct. 10. In an interview with the Associated Press earlier that month, he said he was “bracing myself for an October Surprise,” noting the Iranians “are not exactly supporters of mine.”

Ultimately, the hostages weren’t freed before the election. Mr. Reagan won a resounding victory—and the hostages were released the day he was sworn into office.
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