Glenn Harlan Reynolds

UPDATE: Shortly after this column went online, FBI Director James Comey announced that the FBI will not recommend charges against Hillary. Although he said that there was extreme "carelessness" in handling classified information, the lack of intent to violate the law precluded prosecution. That's a bit of a surprise given that the Department of Justice is currently prosecuting Petty Officer First Class Kristian Saucier for a similar crime where no intent was involved. This gives rise to suspicions, verging on certainty, that the law is different when your name is Clinton, that laws are for the "little people" and not those in charge. As Kurt Schlichter has recently warned, the sense that there's no such thing as rule of law in today's America is likely to be quite corrosive. If Hillary can do this much damage to America's fabric now, how much worse will things be with her in the White House?

So this past weekend, while most Americans were lounging by the pool, shooting off fireworks and eating hot dogs, Democratic Party presidential candidate (and presumptive nominee) Hillary Clinton was being questioned by the FBI. For three and a half hours.

The questions, reportedly, had to do with her unapproved and illegal private email server. Hillary, in an apparent effort to emulate Henry Kissinger’s successful maneuvers to keep his documents from coming under Freedom of Information Act requests, had used her own email service instead of the official, and more secure, State Department service. This was not an occasional, incidental use — like sending a message via Gmail because you couldn’t reach the official account — but a very deliberate scheme to make sure that her emails weren’t available under open records laws.

Though Hillary and her campaign at first claimed that no classified material was on this insecure system (emails about yoga and Chelsea’s wedding, we were told), that wasn’t the case; thousands of emails contained classified information, some of it quite serious. So that Hillary could avoid public scrutiny, very sensitive information was conveyed in a form that made it easy to hack. And, actually, we already know that her email was compromised, by a hacker who calls himself Guccifer. He broke into the private email of a Clinton crony and found email exchanges with Clinton. It is likely that Clinton's own email was hacked by one or more foreign intelligence services, too, though so far they’re not talking and no definitive proof has been made public.



While Hillary’s risky email setup had the virtue of insulating her activity as secretary of State from public scrutiny, it had some other problems. The handling of classified matter is governed by statutes and regulations, and violating those statutes and regulations is a serious crime. Hence, the FBI interview. (The guy who set the system up for her has taken the Fifth, which looks pretty bad. Juries are supposed to ignore it when people take the Fifth Amendment privilege against self-incrimination, but the rest of us are under no such obligation.)

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Many observers say that this is all Kabuki, and that nothing will happen to Hillary. As Twitter wag Iowa Hawk put it: ”If you think there's a chance that the FBI will recommend prosecuting Hillary, you've apparently never watched pro rasslin'.”

Still, at least somebody seems worried, as possible future First Gentleman Bill Clinton had a very non-standard meeting with Obama administration Attorney General Loretta Lynch, on board her jet at Phoenix’s Sky Harbor airport. (Bill’s own private jet just “happened” to be there days before the FBI interviewed his wife.)

What did they talk about? Officially, grandchildren and golf. (No word on whether yoga came up.) But nobody arranges a secret meeting with the attorney general of the United States — a local TV reporter revealed the story and reported that the FBI was enforcing a no-cellphones, no-photos rule — just to talk about grandchildren.

And no reasonable attorney general meets secretly with the husband of someone under investigation by the FBI, but that’s what happened. Loretta Lynch has gotten a lot of flak for this from across the political spectrum, and with good reason. It’s not just that the “optics” are bad, to use a favorite Washington phrase. It’s that the actuality is bad.

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Lynch has responded by kinda-sorta-but-not-really recusing herself from the decision on whether to prosecute Hillary. Of course, that may simply mean that someone else is expected to take the heat. But it certainly hurts Lynch: If, as some have suggested, a President Hillary might nominate Lynch to the Supreme Court, now that would look too much like a payoff for even many Democrats to stomach. (The New York Post cover on Saturday featured Bill Clinton and Loretta Lynch with the headline “Snakes on a plane.”)

And it serves as a reminder to the rest of us: As we learned in the 1990s, anyone who gets close to the Clintons seems to wind up embroiled in some sort of shady dealings. In the intervening years, that history got glossed over with rosy memories of the Tech Bubble and the (illusory) post-Cold War “peace dividend.” But shady dealings are the Clintons’ trademark, and a Hillary presidency, if it happens, is clearly going to continue that tradition. And it’s not just email. As a prominent Democrat complained to The New Yorker’s Ryan Lizza, “The person that the White House cleared the field for, and that everyone has fallen in line for, has three federal investigations going on.”

For voters, there’s this takeaway from the Independence Day weekend: There are, counting the Green and Libertarian party candidates, four national candidates running for president. Only one of them is under FBI investigation.

Glenn Harlan Reynolds, a University of Tennessee law professor and the author of The New School: How the Information Age Will Save American Education from Itself, is a member of USA TODAY's Board of Contributors.

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