Wednesday, July 6, 2016

In a Rigged System, Hillary Clinton Is Too Big to Indict

Posted on Jul 5, 2016

The long-roiling question finally has been answered: Hillary Clinton will not be indicted for using a private email server during her tenure as secretary of state. Period. Full stop. Pause a moment, and let it sink in.

FBI Director James Comey delivered the word in a surprise news conference Tuesday morning, exactly three days after Clinton’s 3½-hour interview Saturday at the J. Edgar Hoover Building in Washington, D.C.

There was plenty of evidence that the presumptive Democratic presidential nominee and her staff had been “extremely careless” in their handling of classified and sensitive information, Comey said, but not enough to prove they had acted with the criminal intent or willfulness needed to secure a conviction. “No reasonable prosecutor would bring such a case,” he concluded.

While the FBI’s evaluation technically is not binding on the Justice Department, any indictment is now clearly off the table. Last week, following her embarrassing and ethically suspect encounter with Bill Clinton on the tarmac at the Phoenix airport, Attorney General Loretta Lynch publicly pledged to follow the bureau’s lead. And the bureau, via Comey, has spoken.

Reaction to his announcement has been swift and predictable, with House Speaker Paul Ryan, R-Wis., expressing shock and dismay that the “rule of law” has been “damaged,” and the Clinton campaign voicing relief “that the matter is now resolved.” Taking to Twitter, Clinton’s Republican presidential rival, Donald Trump, blasted Comey’s analysis as further proof that “the system is rigged.”

I have been following the Clinton email scandal in this column for several months and have long predicted that she would escape prosecution. Now that the official decision is in, I find myself, regrettably, in agreement with Ryan and Trump.

The system is rigged. Like the Wall Street banks that were bailed out after running the nation’s economy off a cliff just a few years ago because they were too big to fail, Clinton and the power elite of which she is an integral part are too big to indict.

This isn’t to say that Comey or any of the career prosecutors in the Justice Department assigned to the investigation are in the tank. White-collar crimes are often tangled webs, tedious to investigate and hard to litigate. Clinton’s email machinations are no exception.

As Comey noted in his news conference, the email investigation focused on two federal criminal statutes. They are Sections 1924 and 793 of Title 18 of the United States Code. They deal, respectively, with the unauthorized removal and retention of classified material, and the improper gathering, transmission or loss of information relating to the national defense.

A conviction of Clinton under the first statute, a misdemeanor, would require proof that she actually knew she was keeping classified information on her server. The second, a felony carrying a potential 10-year prison sentence, would require a showing of either knowledge or gross negligence (essentially, the equivalent of recklessness). The elements of both offenses would have to be established beyond a reasonable doubt, the highest standard of proof in our legal system.

In part, Comey explained, the recommendation against prosecution was made because an indictment would have taken investigators into uncharted legal waters. “All the cases prosecuted [under these laws],” he explained, alluding to but not naming former CIA Director David Petraeus and ex-National Security Adviser Sandy Berger, “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.”

Reasonable minds, as they say in law school lectures nearly every day across the country, can differ. But is a criminal case against Clinton actually so weak that, to quote Comey again, “no reasonable prosecutor would bring” it?

As Comey revealed, Clinton used not one, but “several” email servers at her New York home during her tenure at the State Department from January 2009 to February 2013, “decommissioning” and replacing one after another. More importantly, he also revealed that the servers contained no less than 110 emails that included information that was classified at the time the emails were received and stored. Of these, eight email chains contained information that was “top secret.”

Comey’s announcement came on the heels of an 83-page report issued by the State Department’s Office of Inspector General (IG). Released on May 26, the IG’s report delivered a stinging rebuke of Clinton, finding that she had committed a bounty of administrative derelictions.

Among her many missteps, according to the IG, Clinton never obtained department approval for using personal email, much less a BlackBerry mobile phone or a private server, to transact official business. Such practices, in fact, contravened a departmental policy adopted in 2005, advising employees to conduct day-to-day operations on an authorized automation system. The claim that her email usage was “permitted” during her term at the State Department is still published on Clinton’s official website. It is at best artful and misleading.

The IG also found that Clinton continued to use the server without seeking technical assistance from the department’s Bureau of Information Resource Management (IRM) to guard against leaks and hacking, even though two IRM staffers raised security misgivings about the server in 2010, and the server was briefly shut down in 2011 out of concerns that an unknown third party was attempting to break into it.

Clinton’s oft-cited defense that her predecessors at the State Department also utilized personal email is similarly misleading. While Colin Powell conducted official business via a private email account, as did certain aides to Condoleezza Rice, the installation of a private server was unprecedented.

The IG further faulted Clinton for waiting until December 2014, 21 months after leaving office, to turn over some 30,000 emails to the department. Under the provisions of the Federal Records Act, even before it was amended and tightened in 2014, Clinton was required to submit all work-related documents immediately upon her departure as secretary.

Neither the IG nor Comey, however, commented directly on the propriety of Clinton’s unilateral decision to delete some 31,000 email messages from her server that she deemed were purely personal. Was other classified and top secret material contained in files that have been permanently erased? We’re unlikely to know now.

The decision not to prosecute, however, will not end the email controversy, not by a long shot.

The leniency shown to Clinton stands in stark contrast to the harsh sentences meted out to whistleblowers such as Chelsea Manning and former CIA analyst John Kiriakou for their alleged mishandling of classified material.

As a result, we can expect the cries of double standards, political influence and corruption to persist and redouble as we head for the November election. At the same time, the increasingly proto-fascist Trump campaign will be fortified with a fresh set of inexhaustible talking points.

Most disastrous of all, the race for the White House, which should be a cakewalk for the Democrats, will go down to the wire because the party has chosen as its leader a candidate driven by blind ambition, with an appalling disregard for accountability and transparency, who, when push came to shove, was too big to bring to the bar of justice.

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