Hillary Clinton email story likely far from over

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Story highlights

  • Paul Callan: Voters will be shaking their heads about mess they have witnessed over FBI's investigation of Clinton emails
  • The reality is that the Hillary Clinton email story is far from over, Callan says

Paul Callan is a CNN legal analyst, a former NYC homicide prosecutor and currently is "of counsel" to the New York law firm of Edelman and Edelman, PC, focusing on wrongful conviction and civil rights cases. Follow him @paulcallan. The views expressed in this commentary are his own.

(CNN)FBI Director James Comey on Sunday issued a third highly unusual statement regarding the Hillary Clinton email server investigation, returning to the original theme of exoneration first proffered in July. Democrats breathed a sigh of relief. But how did we get here? And can Team Clinton really relax?

Paul Callan
The sorry history of the email saga leads directly back to the tarmac of Phoenix's Sky Harbor Airport on June 27, 2016, when Bill Clinton decided to pay a surprise visit to his old friend Attorney General Loretta Lynch. The runway visit was by all accounts staggeringly improper. Lynch was then the chief law enforcement official in charge of an investigation of Hillary Clinton's private email server.
    According to Lynch, she and the former president only discussed "grandchildren and golf." To her credit, the attorney general immediately recognized that the Clinton visit to her plane was an ethical and public relations disaster. She quite sensibly opted to distance herself from the decision-making with respect to the Hillary Clinton investigation. However, in a strange move, she ceded supervisory and decision-making responsibility concerning the email investigation directly to the FBI (a move she suggested had already been planned).
    In Washington's chain of command, the Justice Department exercises supervisory responsibility over the FBI. It is the Justice Department, not the FBI, that customarily makes the final decision regarding the commencement or termination of a criminal prosecution based upon the evidence gathered by the FBI. Yet while this was an extraordinary and unusual transfer of power from the Justice Department to its federal police arm, the FBI, Lynch had substantial reason to respect the integrity and judgment of Comey. After all, he had previously served as the United States attorney for New York's Southern District and as deputy attorney general of the United States from 2003-2005.
    Given his sterling credentials, it is astonishing that Comey would later violate Justice Department protocols by making a number of public statements on the ongoing investigation. Comey asserted that he was protecting the FBI's reputation for straight shooting and integrity, but this attempt at "transparency" and "openness" has been a disaster.
    Comey first issued a surprise announcement in July firmly suggesting Clinton's exoneration, prompting Trump and his supporters to cry foul and suggest the process was "rigged" in favor of Clinton. Democrats praised Comey's fairness and integrity.
    Those accolades turned to dust when, on October 28, Comey announced the discovery of what later would be revealed to be perhaps tens of thousands of emails potentially relevant to the investigation. Enter former congressman and serial sexter Anthony Weiner, aka "Carlos Danger," the husband of top Clinton aide Huma Abedin. The FBI sent a letter to Congress saying that in a separate investigation of Weiner it had discovered the emails on a device the couple shared, a decision by Comey that elicited howls of protest from Democrats.
    But one more bizarre development remained.
    Just two days before the presidential election, Comey made unusual public announcement number three, stating that his hardworking agents had somehow (dare I say miraculously?) examined the new material and found nothing to change its view that Hillary Clinton should not face criminal charges.
    The FBI must have quite an algorithm to conclude this review so swiftly.
    Regardless, as the election proceeds Tuesday, American voters will undoubtedly be shaking their heads about the whole sorry mess they have witnessed. And they have good reason to do so; the FBI's public announcements regarding the results of an incomplete investigation interfered in the campaign by first suggesting the exoneration of Clinton, then hinting at possible concerns, then clearing her again.
    Responsible prosecutors wait until an investigation is over and/or the statute of limitations has run before issuing public pronouncements. New evidence often changes the course of an investigation, sometimes leading to the exoneration, sometimes leading to incarceration. When prosecutors truly seek justice, rather than headlines, silence is almost always the best policy while investigators gather the facts.
    And the reality is that the Hillary Clinton email story is far from over. The FBI initially failed to examine such an obvious source of relevant information as Anthony Weiner's computer. With that in mind, how many other devices are unexamined? Huma Abedin was reportedly surprised that relevant emails were discovered on Weiner's computer. But Huma married a congressman who at one point was the front-runner in the New York mayoral race. I think it is safe to assume that this political couple would exchange emails about politics! So, if the FBI couldn't figure out that basic connection, it raises the question of how many other gaps exist in the probe.
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    All this suggests a turbulent post-election period with calls for impeachment of whomever is elected. Whether a president can be impeached for "high crimes and misdemeanors" committed prior to an election is an interesting legal question that undoubtedly will be the subject of future debate and discussion. And there is also the question of whether a president can pardon her or himself. Plus, it is still unclear whether the FBI sees the Clinton investigation as finished, or more likely has just pushed the pause button.
    Finally, this is not just about Clinton -- if Abedin doubts potential legal peril, she need only look at what happened to Chris Christie's former aides in the Bridgegate scandal. The jury has just handed down convictions while Christie has continued to work unscathed for Team Trump. A coverup and lying to the FBI are often the crimes that survive when evidence of all else shrivels on the vine.
    In short, whoever wins Tuesday, one thing should be clear -- those who think our long national misery will finally be over with the election of a new president need to think again.