How we got here

|The Volokh Conspiracy |

Hillary Clinton speaks to Florida voters at Pasco-Hernando State College East Campus during a rally in Dade City, Fla., on Tuesday. (Melina Mara/The Washington Post)

With less than a week before Election Day, and with early voting well underway in many states, a lot of attention is focusing on the FBI's criminal investigation into the email practices of Democratic presidential nominee Hillary Clinton. Many expect the FBI to weigh in before Election Day on a central theme of Donald Trump's case against his opponent: Is Hillary Clinton a criminal who should be "locked up" based on mishandling of classified email when she was secretary of state?

It's an astonishing situation in which the FBI has an incredibly awkward role. What makes the situation particularly remarkable is that I doubt anyone would know or really care about Clinton's email practices if she were not running for president. This was not a criminal investigation that happened organically. Instead, the path to this exceedingly strange situation has been profoundly shaped by Clinton's role as the Democratic presidential nominee. It's worth thinking about that and what it means for the role of law enforcement in investigating political candidates.

Let's go through the development of the case. First, it was widely assumed at the time of the 2012 Benghazi attacks that Clinton would be a favorite to win the Democratic nomination in 2016. On the political right, this made investigating Benghazi a high priority. Investigating Benghazi meant investigating Clinton, and investigating Clinton meant getting as much information on Clinton as possible. Amidst that evidence, something might be found to hurt Clinton's candidacy. This doesn't mean there was no point in investigating what happened in Benghazi on the merits. But I think we all get that the reason there is a House Select Committee on Benghazi is that Clinton is running for president.

Without the Benghazi investigation, Clinton's email practices likely would not have come to light. As the Benghazi committee's final report explains, the committee sought records about Benghazi from the State Department. The document dump from State included only eight emails to or from Clinton, and Clinton's email address on those emails used the domain name "" That led the State Department to look into and to try to collect the private emails of Clinton and other former secretaries, which led to the big investigation over missing emails and whether and how classified information had been sent over the Clinton server.

It's also unclear whether the FBI would have investigated Clinton's email usage so thoroughly if Clinton had not been a presidential candidate. The FBI seems to have devoted a ton of resources to investigating what happened, much more than I would have expected given the facts. Although the widely publicized report that 147 FBI agents were on the case turned out to be false, the number was still really high: "fewer than 50," The Post's corrected story says, suggesting a number not far below 50. That's a lot of resources to put on a case, especially given that the FBI was mostly trying just to determine whether any crime was committed. And Clinton's presidential candidacy has been cited by the FBI as a reason for putting all those resources into the investigation: The idea was to investigate the case quickly and thoroughly so that a fully informed decision could be made long before the election to avoid influencing the election.

After investigating the case, the FBI's recommendation not to bring a prosecution was, as far as I can tell, independent of Clinton's role as a candidate. Running a private server was obviously a really bad idea that violated several important policies. But I think FBI Director James Comey was likely right that it would have been unreasonable to bring a criminal prosecution—a judgment that presumably was made independently of whether Clinton was running for president. Exercising discretion about what to prosecute is an essential part of being a prosecutor, and the facts didn't seem to add up to the kind of case that would ordinarily be prosecuted criminally. At the same time, Comey would not have made his extraordinary public announcement had Clinton not been a presidential candidate.

Specifically, it appears that Comey made his announcement because the Justice Department was in an awkward spot resulting from Clinton's presidential run. Attorney General Loretta Lynch had met on the tarmac with Bill Clinton, and any announcement by Lynch that Hillary Clinton would not be prosecuted could be interpreted as reflecting some kind of secret deal in exchange for a role in a future Clinton administration. Reasonable people can disagree on whether Comey was right to make that announcement. But if Clinton were not running for office, Comey's concerns wouldn't have existed and the public review of the evidence would not have happened.

It also seems unlikely that the search of Anthony Weiner's computer in an unrelated case would have led the FBI to turn back to the Clinton case had Hillary Clinton not been running for president. If the investigation into Clinton's email server had not happened, or was not such a high-profile case, it seems quite unlikely that agents searching through a former congressman's computer for evidence of sexting with a minor would have stumbled across Huma Abedin's emails and immediately thought that they might be worth searching on their own. We don't know the details yet. But it seems very plausible that Abedin's emails appeared like a potential gold mine—instead of just irrelevant files outside the existing warrant—because of the prominence of the earlier investigation that itself was keyed to Clinton being the Democratic nominee.

Next, if Clinton had not been running for the White House, Comey would not have decided to alert Congress that the FBI had found the new emails on Weiner's computer. According to news reports, Comey's decision was based on concerns that all seem to derive from Clinton's candidacy. Comey apparently was concerned with the FBI's relationship with Congress had the news come out after the election. Comey knew that the Clinton investigation was of extreme importance to Republicans, making extra transparency now critical to Comey's relationship with GOP politicians down the road. Comey also feared that if he didn't disclose the development, someone in the FBI would leak it to the press. Whether these concerns are legitimate or not, they wouldn't be an issue if Clinton had decided to retire from public life after being secretary of state.

Finally, the mad rush at the FBI to search through the emails also reflects Clinton's candidacy. The FBI is now racing against the clock. It is putting tons of resources into searching through the emails on Weiner's computer and into making sense of them all at lightning speed. The hope is to have news about what the emails contain in a few days. That's an incredibly fast pace for a criminal investigation, and that pace is not required by law. Instead, it simply reflects the fact that Clinton is a presidential candidate and Election Day is next week.

Clinton's presidential candidacy influenced the path of the case at almost every step. If Clinton were not running for president, her private email server likely would not have been discovered. Even if it had been discovered, it likely would not have been investigated thoroughly by the FBI. Even if it had been investigated thoroughly, the details of what investigators found likely would not have been disclosed. The discovery of emails found on Weiner's computer in an unrelated case would not have led the FBI to expand that search to Clinton's emails. Even if the FBI had expanded the search, that would not have been disclosed to Congress and therefore the public. And even if it that had been disclosed to the public, that would have not have led to a mad rush to search the emails in the week before Election Day.