Even though it’s now come full circle, I want to write about this FBI thing. For two reasons. First, because the initial Fox News report from Bret Baier about likely indictments, combined with a tightening in the polls, sent me into a bit of the Chicken Little mode, messaging my friends and posting how the sky seemed to be falling. That deserves a thorough reassessment from the perspective of 7 several  days hence and the other information that has hit the street on this matter.

Second, because this one event is all too revealing of the problems we now face with our democratic system and some of its essential institutions. In particular, law enforcement and the media.

So first, what happened?

Everyone who has kept at least one, half-opened eye on this race knows the basic facts. On Friday, October 28, eleven days before the election, FBI Director James Comey sent a letter to Congress saying investigators had discovered emails on the laptop of Anthony Weiner which were pertinent to the investigation of Hillary Clinton’s use of a private server.

This was a departure from the Justice Department policy of maintaining a quiet period of 60 days prior to elections regarding any investigations–so as to avoid affecting the election outcome or even the appearance of doing so.  We don’t want our law enforcement agencies mucking in our elections. That’s what Russia does. Comey’s letter was immediately leaked by far right congressman Jason Chaffetz, chair of the House Oversight Committee.

On Wednesday, just six days before the election, Fox News’ Bret Baier broke a story that his FBI sources had told him there “likely” would be indictments regarding the Clinton Foundation on charges of “pay-to-play,” that is, essentially access to Secretary Clinton during her tenure was being “sold” through donations to the organization.  There followed allegations that the Department of Justice blocking FBI attempts to continue the investigation and, in a word, all hell broke loose.

Then Fox retracted and Comey, just this Sunday gave an “all clear,” saying there was nothing new in the recent emails of note, at least as far as a prosecution of Hillary Clinton is concerned.

So what was really going on with all this? What’s routine here and what’s abnormal?

It’s useful to understand the relationship between law enforcement and law prosecution, here, the FBI and the federal prosecutors (Assistant US Attorneys or AUSAs) in the Department of Justice. Anyone who has watched Law and Order or other popular TV crime shows gets this. There is a natural bureaucratic tension between the investigators and prosecuting attorneys. FBI agents want indictments and their whole professional being is geared toward getting them. They get paid to be suspicious, follow up on both good and bad leads, hunches and innuendo.

AUSAs on the other hand have to carry the water in a court of law. I’ve known several AUSAs. One good friend was an FBI agent, turned AUSA and eventually became the U.S. Attorney in his district. He also served in the public corruption division for part of his time as an AUSA. So I have more than just a passing knowledge of this culture. They understand that their resources are limited and don’t feel they should be expended on any case that is not a slam dunk–because they get rewarded for winning cases and winning requires proving a crime beyond a reasonable doubt.

This is the background wash on the canvass one needs to properly view this matter. It’s not at all uncommon for FBI agents to bring a set of facts–a case–to prosecutors only to be told “you need more because this is not a winnable case yet” or not an indictable case. Though prosecutors are fond of saying you can get a ham sandwich indicted if you want to–an indication of how low the bar is for obtaining a “true bill” from a grand jury.

So, back and forth tension on potentially prosecutable cases between the FBI and Justice is a very run-of-the-mill, normal occurrence.  The Wall Street Journal in a multi-sourced article published the same day as Baier’s story laid out exactly this situation between the FBI and DoJ on the Clinton Foundation investigation. Of note here is that jurisdiction for this matter within DoJ lies with the public corruption division. These are the straightest of the straight shooters in Justice.

Because of the nature of their work–dealing with misconduct by public, often elected, officials–they are most keenly aware of how their cases might taint the reputation of not only the Department but of the entire criminal jurisprudence system. If our criminal legal process is viewed as compromised through political bias, think about what happens to every case brought in the future against a public official. In the back of every potential juror’s mind is the question “how legitimate is this prosecution?”

Therefore, if you’re looking to sort out how much fire is there amidst all the smoke, the fact that the AUSAs of the public corruption office here looked at the case presented to them by the FBI and basically said “meh” is telling. What is also telling here is what is abnormal in the facts before us.

I’ve already mentioned the unprecedented nature of Comey’s letter to Congress. It’s very difficult, even if you believe Comey to be a man of integrity, to find a benign explanation for this. If the FBI was playing by the rules, all they knew about before the letter was the metadata on the emails (essentially to whom, from whom and date), because their search warrant did not permit them to go beyond Anthony Weiner’s communications. So to characterize them as “pertinent” and dropping the possibility they could be “significant” was, at best, a stretch of the truth. And Comey would have to be the most naive person in Washington to not appreciate the effect his letter would have on the public discourse surrounding a presidential election.

Moreover, logically his decision doesn’t pan out. If he says nothing and it turns out there’s nothing in the emails, then no harm done. If there is something in the emails in the nature of wrongdoing, then he simply can rely on departmental protocol to justify his silence prior to the election. The most plausible reason given is the one that speaks to much greater concerns: that he knew the information would leak from the FBI anyway, so decided it’s better to have an official pronouncement than an anonymous and dark accusation.

This is the other glaring abnormality in this mess that colors the assessment of what is actually going on here. Quite simply, a disciplined and ethical FBI agent, taking the expected and dutiful nonpartisan approach to his/her work, does not leak information about investigations of public corruption.  So the fact that there are leaks here at all tells us that, within the FBI, this is already a highly politicized probe. When you throw in the fact that Rudy Giuliani was clearly aware of Comey’s letter before it was sent and released and that he openly relished the thought of affecting the campaign in Trump’s favor, the implications are very, very troubling.

So, what’s the damage?

First, let’s deal with the race itself. Did Comey’s letter have an effect on the support for either candidate? It did not. Trump’s rise in the polls began well before Comey’s letter (around October 21) and, in fact, the poll averages for surveys taken after Comey’s letter show Trump’s support flattening out, as the image (from RCP) to the left shows. The little mini-spike that appears to be about Saturday the 29th, a day after the letter, reflects polls prior to the release of the letter.

The real damage here, of course, is to the FBI, a free and impartial media and the electoral process itself. I worked in the field of democracy development in Russia for over four years. The list of factors that conspire to prevent Russia from becoming a consolidated democracy is a long one. But prominent in that list are a pliant media pushing a partisan narrative that supports the government and tips the scales against opposition voices; and a law enforcement arm of the state that regular harasses citizens and subjects them to false criminal charges if they get too critical of the regime or are viewed as a threat to its strangle hold on power.

Suppose there were a prosecutable case against the Clinton Foundation or against Hillary Clinton herself. The probability of that case ever being brought to trial are now zero. Because the investigation was used to try to influence the outcome of an election. And apparently the cancer goes much deeper than that. The Guardian reports an interview with an active FBI agent who says Clinton is “the antichrist personified to a large swath of FBI personnel,” and describes the agency as “Trumplandia.” This is a malfeasance of Nixonian proportions.

And malfeasance pervades our media as well. Forget for a moment that this is easily the least policy oriented coverage of an election in history. Forget that segmentation of the media spectrum combined with the high velocity of information forces TV and cable news toward sensationalism and scoopism. We absolutely must have a media that adheres to basic standards of journalistic best practices if we are to survive as a democracy.

That means, among other things, double sourcing anonymous leaks, looking for and reporting on the countervailing perspective and/or the benign explanation and having the basic knowledge of the operations of the area you are reporting on. If Bret Baier had taken the time to understand the basic workings of the relationship between the FBI and DoJ (as I have laid out above) there is at least some chance his initial story would have been tempered with some leavening perspective rather than sensationalized as it was.

In democracy development, we often talk of the indispensable need for free and fair elections (or sometimes honest, open and competitive elections) as one of the primary markers of a functioning democracy. This is basic stuff, right? We know this from the moment in our youth when we first become aware that an election is occurring and what it is. We are told it’s one of the things that sets America apart from many other countries. We are educated on America’s special place in the history of democratic rule and freedom of the press.

Democratic elections depend upon an honest public discourse, which, in turn, requires a common body of generally accepted trustworthy facts.  That platform of a commonly accepted body of collective truth is steadily eroding, a victim of the multiplicity of available information sources, the echo chambers those sources create and a corresponding erosion in trust in institutions in general.  And this is the road to an imperiled democracy.

It’s critical that corporate media in America face this crisis head on and work together in taking proactive steps to reverse this erosion of the foundations of trustworthy information. Additionally, the FBI and DoJ must act immediately after the election to reestablish credibility as honorable law enforcement establishments. Heads must roll.  And together we must all do our part to call out dishonest arguments and spurious allegations against anyone in the political class. Everyone has a right to advance their own narrative, no one has a right to advance it at the expense of the truth and our democracy.

If you think this all seems a bit overwrought, think about this. In its editorial endorsing Hillary Clinton the Economist cites research indicating that a quarter of Americans born since 1980 think democracy is a bad form of government and fewer than 30 percent of them say that living in a democracy is essential.

As you finish your coffee, just let that sink in for a bit.

[Edited for grammar and to add stats and links]