This morning, FBI Director James Comey made a brief statement regarding the investigation into the Clinton email matter. The short version: no charges.
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. Prosecutors necessarily weigh a number of factors before deciding whether to bring charges.
This reads to me like “we don’t think we’d be able to convict her.” Make no mistake, that’s not a declaration of innocence. It is a giant pile of vagueness, that could include concerns about how a trial would play out, whether prosecutors would put their careers in jeopardy, risk their public reputations, subject themselves to the liberal blogosphere, subject their families to the liberal blogosphere, or whether they had enough dots connected to make a sufficiently ironclad case against an extremely important, connected, powerful and deep-pocketed defendant.
Note this next:
He characterized the investigation findings as showing that Clinton and her team were “extremely careless” but he said there was no clear evidence they intended to violate the law.
It seems that Comey is applying a mens rea argument. This is a bit ironic, because prosecutors at many levels have been accused in recent times of abandoning mens rea in their pursuit of wrongdoers. I suppose we might want to keep this in mind the next time the government accuses someone of crimes when no intent can be shown.
But, with the qualification that I am not privy to the information the FBI has, this argument fails a sniff test. When it comes to classified information, carelessness is enough to cost one’s security clearance, or worse. I recall an instance where someone at my old job was busted for having taken some classified document home with him to work on them (because he was so overwhelmed with work), and IIRC he had his clearance revoked (and possibly worse). Carelessness to the point of permitting classified information to enter the unclassified world is a big no-no, and that alone should be enough to revoke Clinton’s access.
Of course, if the voters put her into the White House in November, it can and will be argued that enough voters found her peccadilloes of insufficient consequence. It’s hard to make a case that an elected President should be denied the information needed to do the job, and, practically, it would make governance impossible.
Statists love to talk about restricting things like campaign finance and establishing rules regarding gifts and the like in order to avoid the appearance of corruption, and that principle has appeared in a number of Supreme Court decisions that have upheld limits on political speech in various forms. Consider, though, the response to the meeting between Bill Clinton and Attorney General Loretta Lynch last week. The meeting, unplanned, private, and rumored to have been ‘blacked out’ by the FBI, did not, we are assured, include any discussion about Bill’s wife’s FBI investigation. In follow-up, words about bad optics were released, and Lynch assured everyone that she’d follow the FBI recommendations (rather than, presumably, applying her own judgment regarding the wife of the man who gave her her first big job at Justice in 1999). It’s funny to hear the repeat of the “optics” not-really-mea-culpa again from the administration, and it’s also funny to note that someone who, among other things, promised campaign finance reform, had nothing to say about the Clinton-Lynch meeting’s appearance of corruption other than to have one of his advisors mumble something about optics.
This incident absolutely reeks of the appearance of corruption, given the overt statements of extreme carelessness, the known mishandling of a large number of classified documents, the totally inappropriate meeting between Bill Clinton and Loretta Lynch, Obama’s endorsement of Clinton ahead of the conclusion of the FBI investigation, and other factors. Clinton’s apologists and boosters will wave this around as proof of innocence and of a politically-charged witch hunt, but it remains that she and her people mishandled classified information.
This bit of business is over as far as Justice is concerned, but it’s not going away. Wikileaks has been releasing thousands of Clinton emails, and there are rumors of the existence of copies of some of the classified ones. Then there’s the recently released bit about the destruction of Clinton’s daily schedules from her Secretary of State times. These documents are supposed to be public record, and therefore should have been archived, but apparently Ms. Clinton’s penchant for privacy trumps her duty to the voters. We know now that this doesn’t matter, because if mishandling hundreds of classified emails isn’t enough to get her in hot water, some mere record keeping shenanigans won’t either.
In conclusion, I quote Al Czervik. If this episode piled on top of everything else doesn’t convince people that Clinton has no business being President, I think that the nation has simply given up on any pretense of expecting anything of honor or propriety from its government.
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