In the end, James Comey issued a non-legal
indictment against Hillary Clinton, accusing her of
recklessness in mishandling classified
information while concluding that no criminal
charges should be brought.
That, of course, unleashed a storm of partisan
commentary, even though the FBI director hardly
gave her a clean bill of health. And in declining
to recommend an indictment, Comey removed
the last shred of doubt that the onetime first lady
will be the Democratic presidential nominee.
I am going to approach the subject as a former
Justice Department reporter who has covered
every special prosecutor’s investigation in recent
decades—not as a partisan who either believes
that Clinton did nothing wrong or that she should
already be behind bars.
The key sentence in Comey’s announcement
yesterday is that despite the evidence uncovered
by the bureau, “our judgment is that no
reasonable prosecutor would bring such a case.”
I don’t agree with that. The former federal
prosecutor laid out layers of facts that could have
supported an indictment. The gross negligence in
using her private email to send classified
information—in direct contradiction of what the
candidate has claimed—could have amounted to
one or more criminal charges.
I also believe there was a higher bar with Clinton
as the target. That’s not to say that Comey
succumbed to political pressure, as he insists he
did not. But a decision to indict Clinton would
have knocked her out of the presidential race. In
that kind of circumstance, a close call goes to
the high-profile target.
Much of the reaction turns on whether Comey’s
reputation as a straight shooter—he was deputy
attorney general in the Bush administration
before President Obama tapped him for the FBI—
carries sufficient weight. None of us has seen the
voluminous evidence compiled by the bureau,
culminating in Saturday’s interview of Clinton—
days after that spectacularly wrong-headed
meeting between her husband and Loretta Lynch.
Donald Trump wasted little time in tweeting: “The
system is rigged. General Petraeus got in trouble
for far less. Very very unfair! As usual, bad
judgment.” Of course, Trump anticipated the
outcome by declaring the system rigged last
week, and has said that her offenses are such
that she shouldn’t even be “allowed” to run.
It’s no accident that Comey front-loaded his
remarks with paragraph after paragraph of
criticism before announcing that Clinton would
not be charged.
Among other things, Comey blew away Clinton’s
repeated insistence that she never sent nor
received classified information. To wit:
“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 information that they were
extremely careless in their handling of very
sensitive, highly classified information.” And:
“Even if information is not marked ‘classified’ in
an email, participants who know or should know
that the subject matter is classified are still
obligated to protect it.”
In fact, the FBI found 110 emails in 52 separate
chains that were classified when they were sent
or received. And intent does not matter when it
comes to bringing charges.
Comey did say he found no deliberate effort to
destroy emails, beyond routine maintenance, but
that some of those that were deleted will never
be recovered.
And while the bureau uncovered no hard
evidence that foreign entities had hacked
Clinton’s private server, Comey said it was quite
possible, and that the hackers could have
covered their tracks.
Clinton’s campaign said it was “pleased” with the
outcome and reiterated that using the private
server was a mistake—though she spent months
denying that after the New York Times broke the
story last year.
By branding Clinton “extremely careless,” Comey
has handed Trump, the Republicans and other
Hillary detractors ample ammunition. Indeed, the
RNC called the bureau’s findings “a glaring
indictment of Hillary Clinton’s complete lack of
judgment, honesty and preparedness to be our
next commander-in-chief.”
It is, as I said, an indictment in all but the
criminal sense.
As for any punishment, Hillary Clinton will not
have to go to court. But she will be tried this fall
in the court of public opinion.
Comments
Post a Comment