The Briefing 10-31-16

Part I

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FBI obtains warrant to pursue new evidence in Clinton email investigation as public distrust grows

The political world in the United States and beyond was rocked on Friday when major media reported that FBI Director James Comey had addressed to members of Congress information that the FBI was expanding its investigation now once again into the Clinton email scandals, this time prompted by an investigation that had to do with former United States Rep. Anthony Weiner and charges that he had been sexting, that is engaged in sexually explicit texting, with a 15-year-old girl in North Carolina.

In the course of the FBI’s investigation in the Weiner case, the attention had turned to Weiner’s estranged wife, Clinton aide Huma Abedin, and the use of a computer by the former Congressman that appeared, according to the FBI Director, to include metadata that would also have included emails that had not yet, it is believed, been disclosed to the FBI in terms of its previous investigation into the Clinton email scandal. Coming just days before the 2016 presidential election when the former Secretary of State had been clearly leading in the polls, this has led to an entire upset of the race. It has led to an enormous amount of chaos, and it points among other things to the fragility of democracy in the United States and around the world.

The immediate controversy was reported explosively over the weekend by major media, including, for example, the Washington Post. In an article by Rosalind S. Helderman, Matt Zapotosky and Sari Horwitz. The Post reports,

“Newly discovered emails found on a computer seized during an investigation of disgraced former congressman Anthony Weiner thrust the controversy over Hillary Clinton’s use of a private server back into the presidential campaign less than two weeks before the election.”

Now before even going beyond that lead paragraph, what this tells us once again is just how volatile a presidential election in the United States can be. Many had assumed that we had basically endured the 2016 campaign, and that all that was left was the end of voting. Early voting of course has already begun, and even before this controversy hit the headlines it was estimated that 40% of American voters had already cast ballots one way or another in the 2016 presidential race.

But in the 2016 election, with two very unpopular candidates atop both major party tickets, this race has been particularly explosive and the weekend demonstrated that these explosions are not over. There are many lessons from a Christian worldview that apply here. One of them is that in the digital world, everything can come back and it can haunt virtually anyone. That is especially the case when it comes to the former Congressman. He and his wife, Huma Abedin, became estranged after a series of sex scandals and only the latest one, having to do with a recurrence of sexting, led to their estrangement, and of course this has played right into the 2016 campaign, because once the investigators turn to a computer that had been used by Huma Abedin, or at least by her husband, and was discovered to include all of this metadata with an estimated tens of thousands of emails, the immediate question came, were those emails amongst those that were disclosed to federal authorities? Or were they amongst those that were supposedly lost?

As the Post reported, officials said the discovery prompted a surprise announcement on Friday by the FBI Director James B. Comey that the agency would once again be examining emails related to Clinton’s time as Secretary of State. In the letter addressed to lawmakers of both parties in Congress, Comey said that the FBI would take what he called,

“…appropriate investigative steps,” as the Post says, “to determine whether the newly discovered emails contain classified information and to assess whether they are relevant to the Clinton server probe.”

Another insight that simply has to play into this from a Christian perspective is the fact that politics invades everything, and nothing is as simple as it might first appear. This is especially the case in the pitched battle of a presidential campaign and with the controversy that has dogged Hillary Clinton, going all the way back to when she announced her candidacy and when it was discovered that she had used a private email server rather than the official government server at the United States State Department when she was the United States Secretary of State. The disappearance of tens of thousands—it is estimated perhaps even more—emails from the former Secretary of State led to a federal investigation and the FBI had announced in the midst of the presidential nomination race that it would not be bringing criminal charges against the former Secretary. All of that is now, again, very much in question, and that throws the 2016 race very much into confusion.

All of this serves to underline just how difficult it is to conduct a major criminal investigation in public, in front of the American people, in front of Congress, and in front of voters in this particular election. But there is no way around the fact that this is huge news, and it is news of a stature that could indeed disrupt the 2016 campaign. Activists and political leaders on both sides of the partisan divide recognize that this is explosive news. The question is, how big an explosion is this?

One of the most frustrating aspects of this particular announcement is the question as to whether or not voters can know anything beyond what the FBI Director announced on Friday before they go to the polls. Again, 40% of the voters have already cast their ballots. The remaining 60% are not likely to know much more than they know right now, other than the fact that the FBI director has officially announced that the investigation is expanding.

The Post got right to the political point in its original report when it said,

“The announcement could reshape a presidential race that Clinton, the Democratic nominee, has been leading in most public polls. It was immediately hailed by Republican nominee Donald Trump, who told supporters at a New Hampshire rally that ‘perhaps, finally, justice will be done.’”

But Clinton told reporters on Friday night in Iowa that she learned of the newly discovered emails only after the letter to Congress was made public. The former secretary said,

“I’m confident whatever [the emails] are will not change the conclusion reached in July. Therefore,” she said. “It’s imperative that the bureau explain this issue in question, whatever it is, without any delay.”

Clinton political operatives hit the major media on Friday and Saturday and yesterday, well into last night, suggesting that it was wrong for the FBI director to have announced this investigation expansion to members of Congress and that it was wrong for the FBI, in particular the FBI Director, to have made this announcement at this point in a presidential campaign. This raises a host not only of political issues, but of moral and legal issues. The legal issues are absolutely complex. This is by any estimation a major criminal investigation.

But the moral issues here are particularly acute, looking first of all at the moral responsibility of the Director of the FBI. According to major media, the Director became knowledgeable of the existence of the emails only earlier last week, he had to make a decision. Would he or would he not inform Congress of the expanded investigation? The political risk and the moral risk were absolutely huge for the Director.

Even though Clinton political operatives and groups within the Democratic Party were quick to accuse the FBI director of acting politically to interfere with a 2016 election, in reality it can be argued that he had little choice, because it would also have been a very morally conflicted position had he had knowledge of the expanded investigation and had he not informed leaders in Congress. Once the leaders were informed, there was no way the story could be kept private. Whatever decision he made, the Director would be charged with acting politically, that is motivated by political considerations, in making that decision. Under the incredible pressure he was under, the FBI Director evidently made the decision that it would be less morally and legally risky to go ahead and make the announcement to Congress rather than to be accused of sitting on information that would have been germane, to say the very least, to the 2016 election.

In the very same edition, that is the print edition, in which the Washington Post ran its original story on the expanded investigation and the notification to Congress, the editors of the Post declared that this was,

“An October email surprise.”

The subtext,

“Days before the presidential election, the FBI puts a cloud over the Clinton campaign.”

But even as you read the editorial, it becomes abundantly clear that even the editors of the Washington Post, some of the most seasoned political observers in the United States, don’t know what to make of the story. And that’s the biggest issue for the American voter. It is not clear what to make of the story other than the fact that this ties back to controversies that have followed Hillary Clinton, and for that matter both Hillary and former President Bill Clinton, for decades in terms of the reputation for the way they do politics.

One of the most interesting statements made in the aftermath of the headlines was made by John D. Podesta; he is the campaign chairman for Hillary Clinton. He said,

“By providing selective information, he [meaning James Comey, the director of the FBI] has allowed partisans to distort and exaggerate to inflict maximum political damage.”

He concluded,

“Comey has not been forthcoming with the facts.”

Now the interesting thing about that, of course, is that the entire controversy has to do with the fact that his candidate has not been forthcoming with the facts.

Morally speaking, another interesting aspect of this is the division that is already apparent in the highest echelons not only of American politics, but of the leadership of the Federal Bureau of Investigation. The FBI has often found itself in controversy, but ever since the midpoint of the 20th century it has been one of the most respected agencies of the federal government. And now once again, the FBI finds itself at the center of controversy.

Another interesting legal aspect of this case is that until fairly late yesterday, the FBI did not have a search warrant that would authorize it to continue the investigation for this cause, expanding the investigation to the Clinton email server controversy and looking into the emails themselves. That’s because the original search warrant that had been obtained by the FBI had to do with emails by the former Congressman having to do with the sexting controversy. It requires a different, a subsequent, court-authorized warrant to continue the investigation into the additional emails. And as major media reported last night, the FBI has now received that warrant.

Late yesterday, the New York Times reported through Matt Apuzzo, Michael S. Schmidt, and Adam Goldman that federal investigators, having obtained this warrant, are now scrambling “to review as much of the information as possible before Election Day.”

That may prove to be a monumental task. After all we’re talking about something that in terms of technology is defined as metadata. It is a massive amount of data.

Another reflection on the headline news that was so explosive over the weekend is that with the exception of the Washington Post, most major American editorial pages of our newspapers have not yet made a statement concerning the controversy. That is explained by the fact that so little is actually known. But from a Christian worldview, the biggest issue at stake here is the moral question of trust, the question as to whether or not voters will trust a candidate who once again has found herself in the center of this kind of controversy and the criminal investigation. It’s very hard for a major political candidate, especially at this point in a presidential election to deal with anything that includes the word warrant in the headlines.

But from a Christian worldview perspective, one of most interesting points at the center of this is the understanding of the necessity of trust for political leadership. And now that question having to do directly with the former Secretary of State is a particularly and newly acute question, but it is not a new question in its essence. It’s important to note that what we see in this particular controversy is the fact that trust and leadership are inextricably linked. And there is a moral issue, a moral knowledge, about the importance of trust that is deeply embedded in the human being. Now from the biblical perspective we understand that that is because God made us as moral creatures, even as he made us uniquely in his image.

The judgment about how one will vote in terms of the presidential election has a great deal to do with trust, and of course that has a great deal to do with any presidential candidate or, for that matter, anyone who is running for the local school board. But when you’re talking about the responsibility invested in the Office of the President of the United States, trust becomes an extremely central question, an inescapable question.

The impact of the story as it stands now and as it might stand unfolding in days ahead is still very much an open question that might not be known until Election Day or even thereafter. But right now, we do understand that every voter in the United States and everyone watching from around the world understands that you can’t talk about leadership without talking about trust, and you cannot have credibility if trust is undermined. But it’s also abundantly clear that the 2016 United States presidential election, this race is not over, not by a long shot. And where it goes from here, well, we’ve got yet a few days to find out.

Part II

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Supreme Court to rule in transgender bathroom case that could fundamentally reshape society

Next, this weekend was marked by huge news and very important headlines. We also turn to a story that made the front page of Saturday’s edition of the New York Times,

“Justices to Rule in Rights Case over Restrooms.”

The reporter: Adam Liptak. He reports,

“The Supreme Court on Friday entered the national debate over transgender rights, announcing that it would decide whether a transgender boy may use the boys’ bathroom in a Virginia high school.”

As Liptak says,

“The court is acting just a year after it established a constitutional right to same-sex marriage, as state laws and federal actions on transgender rights have prompted a welter of lawsuits.”

He goes on,

“In taking the case, the court signaled that it may move more quickly in the area of transgender rights than it has in expanding gay rights.”

We pause here, once again, because even in the past few weeks it has been an open question as to whether the Supreme Court would take this case. The Court is now one seat short of its nine justices, and with four democratically nominated justices and four Republican nominated justices, the Court is effectively split 4-4 on many major questions. But that actually plays into what was announced on Friday, because all that is required for the Court to take a case is four votes. And so there is on almost any question, on either side of the political divide in the United States, an adequate number of justices for the Court to decide to take the case.

Before the announcement on Friday, the speculation had been that the Court might not take the case precisely because it had just acted in the previous year on the question of same-sex marriage. And on that, observers on both sides of the legal and moral divide in this country recognized that the Court delayed that particular decision until, to state the matter bluntly, it was politically safe for the Court to do so.

When it handed down the Obergefell decision last year legalizing same-sex marriage in all 50 states, it was clear that the Court had waited until public opinion in the United States was decidedly behind it. That’s another reminder of the fact that the Court has turned itself effectively into a third political branch of government, following that line that the speculation had been that the Supreme Court would wait for subsequent decisions and developments before it would decide to take such a contentious issue.

But the announcement on Friday indicates that the Supreme Court is diving right into the transgender question, and right where Americans understand it most clearly, having to do with schools and with bathrooms.

Robert Barnes and Moriah Balingit, reporting for the Washington Post, summarized the issue this way,

“School districts across the country are split on how to accommodate transgender students amid conflicting guidance from courts, the federal government and, in some cases, state legislatures that have passed laws requiring people to use public restrooms that match the sex on their birth certificates.”

But the Post went on to say,

“The justices accepted a petition from the School Board of Gloucester County, Va., seeking to overturn a lower court’s order that 17-year-old Gavin Grimm, who was born female but identifies as male, be allowed to use the boys’ restroom during his senior year of high school.”

The Post also helpfully goes back to August in which it indicates that the Supreme Court voted 5-3 in granting a temporary stay on that lower court’s ruling, that was the fourth U.S. Circuit Court of Appeals in Richmond, Virginia, while the case remains on appeal. In that particular order, the key justice was Justice Stephen G. Breyer, that is a Democratic nominee solidly behind gay rights and same-sex marriage, who the Post said,

“…was joining the conservative justices as a ‘courtesy’ that would preserve the status quo while the court considered whether to accept the case.”

Well, that ‘whether’ is now known. The decision was yes. It was announced on Friday.

Lawyers and activists on both sides of this case—by the way the case before the Supreme Court will be known as Gloucester County School B`oard v. G.G.—indicated that they are glad the Court has decided to take the case and to decide the issue. Conservative lawyers representing the school board there in Virginia indicated that they would make their argument first and foremost on procedural grounds—that is that the decision that was forced by the Obama Administration was actually in the form of an advisory from a fairly low level federal appointee who lacked the authority to do so and who established the policy, that is the Obama administration’s policy, requiring school boards to allow persons to use the bathroom of their choice, that is their current gender identity, without following the federal regulations for how such rules are to be put into place.

This does raise the interesting question as to whether or not the Supreme Court might decide this case purely on procedural grounds, saving the larger issue of the transgender question for a subsequent decision and a subsequent case. The 17-year-old at the center of this case is a student who is a minor and therefore is referred to in the documents in the legal filings merely as G.G. But as the Washington Post and other major media reported, we know that the student goes by the name of Gavin Grimm and, according to the Post, he was born female, but identifies as male and is demanding to use the boy’s bathroom in the high school there in Virginia. The student’s lawyer said, and I quote,

“We’re prepared to make our case to the court and to make sure the Supreme Court and people in general see Gavin as who he is [that’s the pronoun they use] and see trans kids across the country for who they are.”

Meanwhile, on the other side, the school board in Virginia, released a statement that said,

“The board looks forward to explaining to the court that its restroom and locker room policy carefully balances the interests of all students and parents in the Gloucester County school system.”

Christians looking at this story need to understand what this announcement means. The Obergefell decision indeed changed America, morally speaking. It was the capstone to years of attempts by the LGBT revolution to bring about the legalization of same-sex marriage legalized by coercive force to the federal court upon all 50 states and the Supreme Court in handing down that decision last year decided the case in favor of the sexual and moral revolution.

But the transgender question now that will be before the Supreme Court threatens to be an even more direct issue in terms of the lives of most Americans and American parents and American school students. The reason for that should be abundantly clear. This is a decision that has to do with one school district in Virginia, but the impact of a Supreme Court decision on this question will be nationwide. And furthermore, it’s likely to have impact far, far beyond the issue even of the public schools. This is likely to be yet another case in which the Supreme Court decides to be the moral arbiter for the United States of America, usurping legislative and other authority in order to bring about a revolution, a moral revolution, by means of a court decree.

We also have to recognize that the question of gender identity is so absolutely central to human identity that this particular question coming before the Supreme Court of the United States is even more monumental than the question of same-sex marriage. The Court, in announcing that it will take the case, will be scheduling oral arguments for the case early in 2017. And we’ll be waiting once again, likely just before July 1 of 2017, for the Court to hand down yet another landmark decision.

This represents yet another milestone in America’s moral revolution, and it underlines the importance to Christians of making sure that our own churches and our own families understand the question of gender and the question of human identity, on biblical terms, long before the Supreme Court holds these oral arguments or hands down its decision. We have now been warned that we have to await 2017 and this particular term of the United States Supreme Court for yet another major landmark decision.

But when it comes to understanding these issues for Christians, the question has to be not what the Supreme Court says, but what does the Scripture say? On that question, the Christian church has to be abundantly faithful and extremely clear, because we can’t expect the same—not even close—from the society around us, much less from the United States Supreme Court.

Finally, today, of course, marks the 499th anniversary of the great Reformation of the 16th century, dated of course to that day on the last day of October in the year 1517 when an Augustinian monk by the name of Martin Luther nailed his famous 95 theses to the door of the Castle Church in Wittenberg. In the course of this week, we’ll be talking about the meaning of that event 499 years ago. But we also know that there will be news this week that will point once again to the importance of that Reformation and to our understanding of what was at stake then and now. There will be plenty to talk about this week.