Last weekend, The New York Times published a long piece about the effect the FBI had on the outcome of the 2016 presidential campaign. As we all know, Donald Trump won a comfortable victory in the Electoral College while falling about 3 million votes behind Hillary Clinton in the popular vote.

I believe that Clinton was a deeply flawed candidate who failed to energize the Democratic Party base and who failed to deliver to the electorate a principled reason to vote for her. Yet when the Times reporters asked her why she believes she lost the race, she gave several answers, the first of which was the involvement of the FBI. She may be right.

Here is the back story.

In 2015, a committee of the House of Representatives that was investigating the deaths of four Americans at the U.S. Consulate in Benghazi, Libya, learned that the State Department had no copies of any emails sent or received by Clinton during her four years as secretary of state. When committee investigators pursued this — at the same time that attorneys involved with civil lawsuits brought against the State Department seeking the Clinton emails were pursuing it — it was revealed that Clinton had used her own home servers for her emails and bypassed the State Department servers.  

Because many of her emails obviously contained government secrets and because the removal of government secrets to any non-secure venue constitutes espionage, the House Select Committee on Benghazi sent a criminal referral to the Department of Justice, which passed it on to the FBI. A congressionally issued criminal referral means that some members of Congress who have seen some evidence think that some crime may have been committed. The DOJ is free to reject the referral, yet it accepted this one.

It directed the FBI to investigate the facts in the referral and to refer to the investigation as a "matter," not as a criminal investigation. The FBI cringed a bit, but Director James Comey followed orders and used the word "matter." This led to some agents mockingly referring to him as the director of the Federal Bureau of Matters. It would not be the last time agents mocked or derided him in the Clinton investigation.

He should not have referred to it by any name, because under DOJ and FBI regulations, the existence of an FBI investigation should not be revealed publicly unless and until it results in some public courtroom activity, such as the release of an indictment. These rules and procedures have been in place for generations to protect those never charged. Because of the role that the FBI has played in our law enforcement history — articulated in books and movies and manifested in our culture — many folks assume that if a person is being investigated by the FBI, she must have done something wrong.

In early July 2016, Clinton was personally interviewed in secret for about four hours by a team of FBI agents who had been working on her case for a year. During that interview, she professed great memory loss and blamed it on a head injury she said she had suffered in her Washington, D.C., home. Some of the agents who interrogated her disbelieved her testimony about the injury and, over the Fourth of July holiday weekend, asked Comey for permission to subpoena her medical records.