[Orin Kerr] How we got here

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 “clintonemail.com.” 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 did