Clinton e-mail scandal: Deconstructing the FBI's report

by Kit

The FBI have finally revealed the results of their investigation into the private e-mail server Hillary Clinton was using to store important state documents, and/or carry out covert State Dept. business away from prying eyes. It turns out she was “extremely careless”, but it’s all fine and she won’t be charged.
The Director of the FBI, James Comey, seems to go out of his way to exonerate Clinton in his press conference (full text here), and yet somehow damn her at the same time – making some peculiar statements in the process. This (my emphasis):

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them.

Is followed up by this (again, emphasis mine):

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

These two statements seem contradictory to me. All the e-mails Clinton’s lawyers didn’t produce were deleted in such a way to “preclude forensic recovery”? And yet there’s “no evidence” of attempted concealment?
He continues:

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.


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.

She was “extremely careless” with “highly classified information”, and it is “possible hostile actors gained access to [the classified e-mails]”. And yet:

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 bringing charges.

Interesting that he doesn’t say “there is not enough evidence to bring a case” or “we do not believe there is a strong case”, but rather “no prosecutor WOULD bring a case”. Would, as opposed to could, is an interesting word choice. Maybe this is just how the FBI talk, but as a lay-man the words seem fairly deliberately chosen.
They imply an unsaid “because”. “No prosecutor would bring this case….because it’s Hillary Clinton, and she’s running for President”.
He says the prosecutors “weigh a number of factors before bringing charges”, but he never says, specifically, what all these factors are. You’d be a fool to assume the question “Is this person a massively wealthy career politician, with many powerful allies, and rumored reputation for murdering inconvenient people, who is currently running for President of the United States?” had no bearing on the decision.

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences.

Other people, who engaged in similar behaviour would face “consequences” – but not Clinton. The FBI director doesn’t mention Bill Clinton’s private meeting with the Attorney General, Loretta Lynch. A meeting Lynch has claimed was “accidental” and that they only talked about Bill’s grandkids. He doesn’t mention that Lynch looks set to keep her job as AG in the (increasingly inevitable) eventuality that Clinton wins the Presidential Election.
Interestingly, three recent similar cases all involved indictments, firings and convictions. David Petraeus, Scooter Libby and Sandy Berger all received much harsher treatment from the authorities for broadly similar behaviour. In fact, those cases involved the leaking, or destruction of, small, specific information. Not thousands upon thousands of classified e-mails.
To get around this the FBI has decided to prioritize intent:

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted 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.

However, to insist that intent is all, in this instance, is incorrect. Negligence is a crime in and of itself – negligent homicide and murder in the first degree are both illegal. In fact, according to Andrew McCarthy writing in the National Review, the FBI has totally re-written the law:

In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets;

Nevertheless, it turns out that Hillary – rather than being (officially) a lying criminal – is merely grossly negligent and “extremely careless”. And, as such, she’s free to run for President of the United States.


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Categories: Essays, Kit, latest, United States