Rove: What If Clinton Gets Indicted?
It would scramble the campaign if Hillary or her aides lose the vital FBI primary.
The Wall Street Journal
May 18, 2016
Despite losing the Oregon primary while barely eking out a win in Kentucky, Hillary Clinton emerged with 51 of Tuesday’s delegates to Bernie Sanders’s 55. To reach the 2,383 needed for the nomination, Mrs. Clinton now needs only 92 of either the 890 still-to-be-elected delegates or the 148 still-unpledged superdelegates. This is because she is already supported by 524 superdelegates—the Democratic Party’s unelected overclass—to Mr. Sanders’s 40.
Still, she must be concerned about losing the FBI primary. If the bureau recommends that the Justice Department indict Mrs. Clinton or close aides like Cheryl Mills, Huma Abedin or Jake Sullivan for acting with gross negligence—disregard of known or easily anticipated risks—in sending classified information over a private email server, the campaign could be completely scrambled.
The FBI may not recommend indictments, or the Justice Department could refuse to issue them. The latter could result in high-profile resignations like those in 1973 with the Watergate “Saturday Night Massacre,” when several top Nixon officials were fired or resigned. Only this time, the turmoil would be covered on cable TV and in high-def.
If there are indictments, Team Clinton will dismiss them as an overreaction to unintentional, minor mistakes and try pushing on through. But that may be unacceptable to the party’s hierarchy, especially if indictments occur before the Democratic convention in Philadelphia opens July 25.
The party establishment might balk at having the ticket led by someone mired in a national-security scandal or by Mr. Sanders, a socialist and independent who has never before sought election as a Democrat or attended a state or national convention.
Instead, the party establishment might move to replace Mrs. Clinton with Vice President Joe Biden, a sentimental favorite, or Secretary of State John Kerry, whom many in the party’s leadership think more substantive, less prone to gaffes and, because of his 2004 loss against President George W. Bush, more deserving.
The legally unbound superdelegates hold the balance of power. Neither Mrs. Clinton nor Mr. Sanders can get the nomination without their votes. And the rest of the Democratic delegates, unlike their Republican counterparts, aren’t bound by state laws or party rules to vote for the candidate they were pledged to in their state’s primary for a certain number of ballots.
The Democratic National Committee’s Rule 12.J. simply says: “Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” So superdelegates could deadlock the convention until enough Clinton and Sanders supporters are willing to discard their original choices and swing the convention to a substitute.
What happens, however, if Mrs. Clinton or someone in her inner circle is indicted after the convention? The Democratic leadership could move to replace her on the ticket. Presumably this would require her to agree to resign as the nominee and be replaced either by a snap convention or by the Democratic National Committee acting on the party’s behalf. Mrs. Clinton wouldn’t give up easily—she and her husband have brazenly pressed through previous scandals.
Even if she agreed to step down, Democrats would have only a narrow window to act. While many states allow election officials to place major-party nominees on the ballot at their discretion, at least 25 states set deadlines for parties to formally certify nominees.
According to a summary by the National Association of Secretaries of State, Texas and Michigan have the earliest deadlines—the first business day after the Democratic convention’s adjournment. That would be July 29 or Aug. 1, depending on the hour of adjournment. Ten other states have certification deadlines sprinkled across the month of August, from Delaware on Aug. 2 to Utah on Aug. 31. These dozen states have a total of 150 Electoral College votes.
What if Democrats act after certifying Hillary Clinton on the ballot in early-deadline states, and then make Mr. Biden or Mr. Kerry the nominee everywhere else? It could then be virtually impossible for them to win the presidency outright, especially since six early-deadline states (Alabama, Michigan, Ohio, Oregon, Utah and Virginia) have “faithless elector laws” that compel electors to support the popular-vote winner. The best possible outcome for Democrats then might be to kick the election to the House of Representatives by denying Donald Trump an electoral-college majority.
An indictment of any higher-up in Clinton World would produce a royal mess for Democrats. You can bet there are wise strategists in a backroom somewhere gaming this out, just in case.
Despite losing the Oregon primary while barely eking out a win in Kentucky, Hillary Clinton emerged with 51 of Tuesday’s delegates to Bernie Sanders’s 55. To reach the 2,383 needed for the nomination, Mrs. Clinton now needs only 92 of either the 890 still-to-be-elected delegates or the 148 still-unpledged superdelegates. This is because she is already supported by 524 superdelegates—the Democratic Party’s unelected overclass—to Mr. Sanders’s 40.
Still, she must be concerned about losing the FBI primary. If the bureau recommends that the Justice Department indict Mrs. Clinton or close aides like Cheryl Mills, Huma Abedin or Jake Sullivan for acting with gross negligence—disregard of known or easily anticipated risks—in sending classified information over a private email server, the campaign could be completely scrambled.
The FBI may not recommend indictments, or the Justice Department could refuse to issue them. The latter could result in high-profile resignations like those in 1973 with the Watergate “Saturday Night Massacre,” when several top Nixon officials were fired or resigned. Only this time, the turmoil would be covered on cable TV and in high-def.
If there are indictments, Team Clinton will dismiss them as an overreaction to unintentional, minor mistakes and try pushing on through. But that may be unacceptable to the party’s hierarchy, especially if indictments occur before the Democratic convention in Philadelphia opens July 25.
The party establishment might balk at having the ticket led by someone mired in a national-security scandal or by Mr. Sanders, a socialist and independent who has never before sought election as a Democrat or attended a state or national convention.
Instead, the party establishment might move to replace Mrs. Clinton with Vice President Joe Biden, a sentimental favorite, or Secretary of State John Kerry, whom many in the party’s leadership think more substantive, less prone to gaffes and, because of his 2004 loss against President George W. Bush, more deserving.
The legally unbound superdelegates hold the balance of power. Neither Mrs. Clinton nor Mr. Sanders can get the nomination without their votes. And the rest of the Democratic delegates, unlike their Republican counterparts, aren’t bound by state laws or party rules to vote for the candidate they were pledged to in their state’s primary for a certain number of ballots.
The Democratic National Committee’s Rule 12.J. simply says: “Delegates elected to the national convention pledged to a presidential candidate shall in all good conscience reflect the sentiments of those who elected them.” So superdelegates could deadlock the convention until enough Clinton and Sanders supporters are willing to discard their original choices and swing the convention to a substitute.
What happens, however, if Mrs. Clinton or someone in her inner circle is indicted after the convention? The Democratic leadership could move to replace her on the ticket. Presumably this would require her to agree to resign as the nominee and be replaced either by a snap convention or by the Democratic National Committee acting on the party’s behalf. Mrs. Clinton wouldn’t give up easily—she and her husband have brazenly pressed through previous scandals.
Even if she agreed to step down, Democrats would have only a narrow window to act. While many states allow election officials to place major-party nominees on the ballot at their discretion, at least 25 states set deadlines for parties to formally certify nominees.
According to a summary by the National Association of Secretaries of State, Texas and Michigan have the earliest deadlines—the first business day after the Democratic convention’s adjournment. That would be July 29 or Aug. 1, depending on the hour of adjournment. Ten other states have certification deadlines sprinkled across the month of August, from Delaware on Aug. 2 to Utah on Aug. 31. These dozen states have a total of 150 Electoral College votes.
What if Democrats act after certifying Hillary Clinton on the ballot in early-deadline states, and then make Mr. Biden or Mr. Kerry the nominee everywhere else? It could then be virtually impossible for them to win the presidency outright, especially since six early-deadline states (Alabama, Michigan, Ohio, Oregon, Utah and Virginia) have “faithless elector laws” that compel electors to support the popular-vote winner. The best possible outcome for Democrats then might be to kick the election to the House of Representatives by denying Donald Trump an electoral-college majority.
An indictment of any higher-up in Clinton World would produce a royal mess for Democrats. You can bet there are wise strategists in a backroom somewhere gaming this out, just in case.
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