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.
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.
