Terry McAuliffe with Clinton at a campaign event in October 2015 (Reuters photo: Jonathan Ernst)

A thick fog of impropriety continues to linger around Hillary Clinton’s e-mail scandal.

Every time you think you must have heard the last of the irregularities in the Clinton e-mails investigation, another shoe drops. So now we learn that the political backers of a longtime Clinton crony and fixer, Virginia governor Terry McAuliffe, made $675,000 in cash and in-kind contributions to the election campaign of the wife of the FBI official who later ran the investigation of Mrs. Clinton.


As the Wall Street Journal reports, the contributions went to the 2015 Virginia state senate campaign of Dr. Jill McCabe, the wife of then-associate-deputy FBI director Andrew McCabe. McAuliffe had recruited Dr. McCabe to run. After her campaign ended unsuccessfully (Dr. McCabe lost to incumbent Republican Dick Black), Andrew McCabe was promoted to deputy director, a role in which he assumed oversight of the Clinton e-mail investigation.

The donations to Dr. McCabe’s campaign included nearly half a million dollars from McAuliffe’s political action committee. The Virginia Democratic party, which McAuliffe substantially controls, also contributed over $200,000 in the form of “mailers.” McAuliffe is reportedly under investigation due to unrelated allegations of campaign-finance violations.

The appearance of impropriety here is disturbing, but it should be put in perspective. The FBI investigation overseen by Deputy Director McCabe uncovered significant evidence of criminal wrongdoing by Mrs. Clinton and her associates — they obviously put together a strong case despite being significantly undermined by the Justice Department. The decision to recommend against prosecution was made by FBI director James Comey, not McCabe. It was highly unusual for the FBI to make a public recommendation about prosecution, and Comey’s was primarily based not on the evidence but on his legal analysis of the relevant statutes (which is even more unusual since that is not the FBI’s job).


The ultimate decision, moreover, was made not by the FBI but by the Obama Justice Department. On that score, we now know (a) the president, using an alias, had willfully e-mailed Clinton’s private account, notwithstanding that he later told the public he’d learned about her use of private e-mail from news reports, so any charges brought against Clinton would have implicated him — that was not going to happen; (b) while the investigation was still underway, President Obama endorsed Clinton, and he made public statements indicating her actions did not endanger national security, undermining the case against her; and (c) Obama’s attorney general furtively met with former President Bill Clinton — i.e., the husband of the main subject of the investigation — shortly before announcing (after Comey’s unusual public recommendation) that the case was being closed without charges.


Here, I believe, is the takeaway from the latest revelation: When an investigation is conducted under circumstances in which top officials know no charges are going to be brought, far less attention than usual is paid to avoiding the appearance of impropriety. When something about the way an investigation is conducted looks potentially corrupt, it is never good; but it really matters only if an indictment is filed, because then these irregularities can jeopardize the eventual prosecution. If there is not going to be a prosecution, investigators can afford to be sloppy, cut corners, and indulge arrangements they ordinarily would not.

The Obama Justice Department’s refusal to bring charges against Hillary Clinton is not an exoneration — and will never be seen as such.

In the Clinton e-mails investigation, we have, for example, the failure to open a grand-jury investigation despite overwhelming evidence that crimes were committed — evidence so overwhelming that subjects sought and received immunity from prosecution. Two key subjects of the investigation, Cheryl Mills and Heather Samuelson, were even given immunity in exchange for turning over their laptop computers, the production of which could have been compelled by subpoena. Those same immunized subjects were permitted to appear as lawyers for the main subject of the investigation, in violation of ethical rules and federal law. Another subject, Paul Combetta, was given immunity, rather than being prosecuted, after lying to the FBI about destroying e-mails (by contrast, two prominent American generals, David Petraeus and James Cartwright, were prosecuted in cases involving the mishandling of classified information after lying to the FBI).


Consulting closely with defense lawyers for the Clinton team, the Justice Department forbade the FBI to interrogate witnesses about central events in the case (like the process of sorting Clinton’s e-mails before surrendering some to the State Department and attempting to destroy over 32,000 others). The Justice Department further restricted the FBI’s examination of laptop computers, and then agreed to destroy those computers. Laptop computers and smart phones containing classified information apparently were “lost” without an explanation. Meantime, the State Department pressured government intelligence agencies to downgrade the information in Clinton’s e-mails so it would not appear that she’d trafficked in classified information. Then you have the aforementioned culpable involvement of the president in the case and the mind-blowing meeting of Attorney General Loretta Lynch with Bill Clinton — who, not coincidentally, is the president who launched Lynch into prominence by appointing her to a coveted U.S. attorney’s position in the early ’90s, and likely would have a lot to say about whether Lynch is retained as attorney general in a Hillary Clinton administration.


#related#These and other factors explain why the Obama Justice Department’s refusal to bring charges against Hillary Clinton is not an exoneration — and will never be seen as such. The new disclosures of political and financial ties between the Clinton machine and the wife of the FBI official who oversaw the Clinton investigation is more fuel for the fire. Hillary Clinton may win the election in two weeks, but the dark clouds over her are not clearing.