The recent letters sent by FBI Director James Comey raise important questions to which the voters are entitled to answers.
The first and most important is whether Comey, before he sent his letter, was actually aware of the content of the emails that were found on Anthony Weiner’s devices. In his original letter, he informed Congress that, “the FBI has learned of the existence of emails that appear to be pertinent to the investigation.”
Subsequent reporting suggests that at the time that he made this statement he was not aware of their content. Indeed, in his original letter, he indicated that, “the FBI should take appropriate investigative steps designed to allow investigators to review these emails…”
How then could Comey know that the emails may be “pertinent to the investigation?” The clear implication of Comey’s communications, which he knew would be made public, was that a) The emails may contain information “pertinent to the investigation;” b) They were not already turned over to the FBI pursuant to earlier requests; c) They involve Hillary ClintonHillary Diane Rodham ClintonPennsylvania GOP authorizes subpoenas in election probe We must mount an all-country response to help our Afghan allies Biden nominates ex-State Department official as Export-Import Bank leader MORE.
Comey’s statements may well impact the result of the election, even if he had no intention of doing so. He may well have made the following calculation: Clinton is so far ahead that she will probably win. If she wins and subsequent investigation produces evidence damning to Clinton, which was not disclosed before the election, he would be faulted by Donald TrumpDonald TrumpFormer Sen. Heller to run for Nevada governor Overnight Defense & National Security — Milley becomes lightning rod Joint Chiefs Chairman Milley becomes lightning rod on right MORE and the Republicans for impacting the election by his silence.
But there is another side to this coin which he should, but may not, have considered: What if his statements about the emails produce a victory for Trump and it then turns out that there was nothing of significance in them?
Or that they were merely duplicates of what had already been produced?
There was a third alternative that Comey could have employed that would have reduced the possibility of his statements improperly impacting the election.
He could have said the following, with clarity and without ambiguity: “The FBI has just learned that there are emails to and from Huma Abedin on the devices we obtained from Anthony Weiner during the sexting investigation.
Neither I nor my investigators have seen these emails. At this time, we have no idea whether they are duplicates of what has already been produced or whether they contain any information pertinent to the investigation of Hillary Clinton’s emails. We simply do not know. Nobody should presume therefore that there is anything pertinent to our investigation, or incriminating, in any of these emails. We won’t know that until we have accessed and read these emails and compared them to those previously disclosed.
I feel obligated to tell Congress about this development, but because we are not yet aware of the content of the emails, it would be unfair for any candidate or voter to infer from my letter that there is anything in them relevant to the election. This is especially the case since it is unlikely that our investigation will be completed before the election.”
But that is not what Comey said; that is not what the media reported; and that is not how voters perceive the impact of Comey’s disclosure.
At this point Comey has only two options if he is to maintain his neutrality in the election. First he must either issue a statement of the kind described above, or second he must undertake a crash investigation and make a further disclosure in the coming days so that voters will know whether there is anything in the emails should properly impact their votes.
Of course, much of the damage may already have been done, since early voting will take place between the time he issued his initial letter and the time he takes the steps outlined above.
Reporting has indicated that none of the newly discovered emails are from Hillary Clinton. It is unlikely, therefore, that these emails contain incriminating information sufficient to result in a criminal prosecution of her.
Nonetheless, these disclosures raise an interesting, if hypothetical, constitutional question: What if Hillary Clinton were elected and then evidence of criminality were revealed. Could she, as president, pardon herself before any investigation was complete? This hypothetical has intrigued law professors and legal scholars since the Watergate scandal involving Richard Nixon, who did not pardon himself, but was pardoned by his successor, Gerald Ford.
The answer to the question of whether a president may pardon him or herself is crystal clear: Nobody knows for sure.
The text of the Constitution grants the president the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This would seem absolute and not subject to constraints either from Congress, the courts or legal ethics.
Since crimes committed before a president takes office may not be impeachable offenses, the second clause of the constitutional provision would not limit the president. But the common law and long accepted rules of legal ethics preclude anyone from being a judge in his or her own case. A president pardoning herself would be engaging in a massive conflict of interest that the public would never accept, just as it didn’t accept Nixon’s firing of the special prosecutor Archibald Cox.
Indeed, a self-pardon might well constitute an impeachable offense even if the underlying crime did not fit that category.
I am confident that this dire situation will not arise in our current election. Hillary Clinton will not be indicted in the email investigation. Nor will Donald Trump be indicted for fraud in the Trump University matter. A far graver danger would be if a president were to be elected based on false information or information that was widely misunderstood by voters.
That is why FBI director Comey cannot remain silent following the release of his ill-advised statements.
Dershowitz’s newest book is Electile Dysfunction: A Guide for Unaroused Voters.
The views expressed by Contributors are their own and are not the views of The Hill.