FBI Director James B. Comey decided against referring Hillary Clinton’s email server case for prosecution, while also eviscerating her serial misstatements concerning her actions.
Comey’s most important comments on Tuesday were these: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of the classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
“Extremely careless” is an awkward phrase for a law enforcement officer. It’s not a phrase found in criminal statutes. There is however a phrase very similar that appears in a federal statute, Section 793(f) of Title 18 prohibiting transfer of classified materials to unsecured places:
“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer-
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“Shall be fined under this title or imprisoned not more than ten years, or both.”
You see, it is not enough to say, as Comey did, that Clinton did not intend to violate the law. So long as she acted with “gross negligence” the law was broken. So wait. Comey is saying she acted with extreme carelessness but not gross negligence? Essentially yes. It would be interesting to hear his explanation as to how she would be extremely careless but not grossly negligent. It’s such a fine line, many would argue, as to be invisible.
Comey’s comments give additional insight into his thinking: “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” Perhaps that is grudging acknowledgment that her actions do fit within the letter of 793(f).
He argues against prosecution, explaining: “There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
“In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”
Basically, he is saying the federal government has not prosecuted anyone for gross negligence and they are not about to now. It would have been far more “transparent,” to use Comey’s word, to say just that: She violated the statute through gross negligence but we choose not to prosecute.
Such an answer would have avoided much of the grumbling on the right and may have even been well-advised. We actually do require a high level of proof for prosecuting high government officials so as to avoid politicized harassment of public officials. Call that a double standard of justice, but frankly it’s one with which investigators and prosecutors are very familiar.
We therefore have an odd result. We and many other conservatives who complained that she lied by claiming no classified materials were sent; that she destroyed some work-related documents along with personal emails; that her Rube Goldberg arrangement had nothing to do with “convenience” (as the discovery of multiple servers reveals); and that she handled materials in a manner in which “it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account” were vindicated.
Despite Comey’s parsing, it is also clear her conduct would likely meet the legal definition of “grossly negligent.” And yet her liberal defenders correctly predicted there would be no indictment.
Put differently, Comey was not willing to set new prosecutorial precedent by indicting someone on the eve of receiving her party’s nomination. (If only former Virginia Gov. Bob McDonnell’s prosecutors had shown similar restraint in declining to concoct a whole new definition of “official act” to undertake their unprecedented prosecution.)
It’s not a result likely to satisfy legal literalists, but it might have been a judicious resolution. Comey has painted her as a liar and a faithless public servant. Voters can render their own decision.
As unseemly as this all is, the episode only underscores the utter stupidity of Republicans. By selecting Donald Trump they found the one person whose defeat may be more essential than Clinton’s to the health of the republic. The RNC delegates should keep this in mind as they exercise — or refuse to exercise — their own discretion.
If they rubber stamp their primary voters, Clinton in all likelihood will win despite her egregious conduct. If they choose virtually any qualified alternative, Republicans very likely could win the presidency. Comey wasn’t going to take Clinton out of the election, but the delegates have the chance to prevent her from reaching the Oval Office — if only they select a nominee less horrendous than Trump.