THC had been working on a piece explaining why Hillary Clinton would not be indicted, but FBI Director James Comey beat him to it. Of course, predicting she would not be indicted is different than whether she should be indicted, or at least whether the matter should have been referred to a grand jury. So let's talk about that instead.
Let's start by reviewing what Director Comey said today, using a summary from Chris Cilliza of the Washington Post:
Here’s the good news for Hillary Clinton: The FBI has recommended no charges be brought following its investigation of the former secretary of state’s private email server.
Here’s the bad news: Just about everything else.
FBI director James Comey dismantled large portions of Clinton’s long-told story about her private server and what she sent or received on it during a stirring 15-minute press conference following which he took no questions. While Comey exonerated Clinton legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion
Most importantly, Comey said that the FBI found 110 emails on Clinton’s server that were classified at the time they were sent or received. That stands in direct contradiction to Clinton’s repeated insistence she never sent or received any classified emails. And, it even stands in contrast to her amended statement that she never knowingly sent or received any classified information. . .We understand Hillary's new campaign slogan is:
Comey said that Clinton had used not one but multiple private email servers during her time at State. He said that Clinton used multiple emails devices during that time. (She had offered her desire to use a single device for “convenience” as the main reason she set up the private server.) He noted that the lawyers tasked by Clinton with sorting her private emails from her professional ones never actually read all of the emails (as the FBI did in the course of its investigation). . .
It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in the spring of 2015. She did send and receive classified emails. The setup did leave her — and the classified information on the server — subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.
Hillary's the one! She may be incredibly sloppy handling our Nation's secrets, but she's not facing criminal charges!
If you don't like that summary, look at this AP article: Clinton email claims collapse under FBI probe, which walks through the various lies she's told. Everything she claimed about the email system and the emails themselves has proven to be incorrect.
Lest you think any of this is cherry picking, let's go to the actual Federal statute in question: Title 18, Section 793(f):
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—Shall be fined under this title or imprisoned not more than ten years, or both.As you can see from the highlighted text, criminal violation of the statute can occur with gross negligence; intent is not required.
Near the beginning of his statement, Comey talks of the purpose of the criminal investigation:
Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.Director Comey's statement makes clear that the documents in question related to national defense, with some of them being classified and he goes on to say:
Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.He then goes on to give several examples of Secretary Clinton's negligence of in the mishandling of this information and about the potential consequences of said mishandling. You can read the statement in full here. This is what he said about the potential for the information ending up in hostile hands:
With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.But, in the end, he declines recommending prosecution because he did not find "clear evidence" of intent, a legal requirement that does not exist in the relevant statute. He's invented an exception out of whole cloth. It's logically puzzling, but perhaps not politically so.
So, let's sum up where we are, based on Director Comey's statement:
Hillary Clinton violated a statute that contains felony penalties.Despite that, Director Comey tells us that other folks might in the same circumstances might face consequences unlike Hillary:
All her operative statements made to the public during the course of investigation were inaccurate.
But, she will not face prosecution because there is not "clear evidence' of intent to violate the statute, even though intent is not a legal requirement to establish such violation.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.Got that?
Now there are some who believe that Secretary Clinton's insistence on operating her own private email account outside the government's security system was to hide corrupt dealing involving the Clinton Foundation. THC believes there is a simpler, and more likely true, explanation. Ever since the early days of her husband's administration, Hillary Clinton has been obsessed with keeping her activities shielded from public disclosure. Whether it was the "off the books" way her heath care reform initiative was put together, the missing Rose Law Firm files, the cover up regarding the firing of the staffers in the White House Travel Office, she is resistant to any public disclosure. Her actions as Secretary of State are consistent with her long-standing practice. The difference here is that as a high ranking government official, routinely handling sensitive government information, she was willing to exchange the possible leak of that information to enemies of the United States, in order to shield everything from the citizens of her own country. The legal processes that apply to "regular" people do not apply to Secretary Clinton, in her mind. [UPDATE: Now that more emails have been released it is apparent, despite my previous doubts, that Clinton's email system was set up, at least in part, to shield dealings with the Clinton Foundation, a clear conflict of interest and in violation of promises she made at the time she became Secretary of State].
Her contempt for the legal process is shown in one aspect of this matter which has never received the public attention it deserves - the deliberate destruction of evidence. After the Benghazi Committee discovered evidence of Clinton's secret private server and email account, both the committee and the State Department asked for the emails to be returned. Clinton handed over 30,000 emails, while announcing she had destroyed another 30,000 that were personal and not work related. In fact, Clinton's claim was inaccurate. Today, Director Comey informs us:
The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014. We found those additional e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private e-mail domain. Others we found by reviewing the archived government e-mail accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond.It should be added that the 30,000 emails, Secretary Clinton turned over were in hard copy, not in electronic form. She could have easily given them to the State Department in electronic form, but instead went to the time and expense to print them out separately. Why? To make them impossible to do word searches on them electronically, hampering investigators and making the Department's effort to review and release them much more lengthy.
The deliberation destruction of evidence is a sore point with THC, who has been involved in much litigation over his career, in which every effort is made to preserve documents, including those deemed irrelevant. And specifically, he has been involved up close and personal (to his personal discomfort) in two criminal cases in which the United States Department of Justice has been on the other side. He can assure our faithful readers, that if he and his cohorts had waltzed into DOJ and announced they'd decided to unilaterally destroy documents they felt were irrelevant, they would quickly be facing obstruction of justice charges. It is unfathomable to THC that a high-ranking government official gets away with this blatant behavior.
This episode is just another example of the rot in our public institutions, which have declined steadily from the days when a President was held accountable for his actions in the Watergate scandal to today when Secretary Clinton escapes accountability for prioritizing her personal desires over the security of the United States.