Sunday, May 27 , 2018, 4:01 am | Fair 57º


Susan Estrich: Stomachaches

"It makes me mildly nauseous to think that we might have had some impact on the election," FBI Director James Comey told the Senate Judiciary Committee, explaining his decision, in the closing days of the presidential campaign, to announce an investigation into emails Hillary Clinton's confidante Huma Abedin had forwarded to her husband, Anthony Weiner.

Many people in Clinton circles can tell you, state by state, exactly what happened to their lead after what amounted to a colossal false alarm.

If it nauseates him so much, why did he do it?

Presumably he was "nauseous" because he is enough of a believer in the Constitution to know that the FBI must not even create the appearance of meddling in a presidential election, lest it lose its legitimacy in the democracy.

And since in the end his investigation reached no conclusions of wrongdoing, Comey's actions were not only reckless but also pointless. There was no reason to risk the appearance of meddling, and every reason not to.

This is, after all, the same student of the law who, when serving as acting attorney general while his boss John Ashcroft was in the hospital, refused to certify aspects of the Bush administration's wiretapping program because he questioned its legality.

Comey held out under immense pressure, out of respect for the Constitution.

So his efforts to explain his actions did not really add up.

The idea that he had to do something raises the question: Why? Because he had previously cleared Clinton? There was no reason to believe that judgment was wrong. There was nothing to reverse.

And Comey has been around long enough to know that the announcement of an investigation is enough to convince a significant number of folks that there must be something wrong.

That is true in a run-of-the-mill executive scandal; it is all the more so in the final days of a hotly contested and no-holds-barred presidential campaign.

If you can't believe the director of the FBI, whom can you believe?

That is what should have made Comey nauseous indeed. You can't reverse the outcome of an election. Whoever wins wins, and there's no fairness court, as Al Gore learned. In a democracy you concede. Clinton did.

But a significant part of this country no longer sees the FBI as anything but a political tool, and the idea that such a political tool could be wielded by President Donald Trump is probably what is keeping Comey in place. His replacement could only be worse.

The politicization of the FBI is why California Sen. Dianne Feinstein pushed Comey so hard to state what he will do to restore trust in his agency.

For the past several decades, if you said the FBI would come in to investigate a highly partisan incident, it meant you were looking for the truth (the way they did on an old TV show, if you're old enough to remember).

It was not the old FBI of J. Edgar Hoover: Can you imagine anyone wanting that again — that kind of power to play with people's privacy and their lives?

Millions of Americans have just heard that if the Republican Senate does not stop the American Health Care Act, they lose their health coverage; and if they have pre-existing conditions, they will have to pay for them; that all the things they hated about the old system are back; and the lower premiums are going to folks who are young and healthy while the only people who vote health insurance as an issue are not.

You see, elections matter. Director Comey was "mildly nauseous." For many of us, it is a stomachache that doesn't go away.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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