Hillary Gets Away With It

It’s been a dramatic week in Washington, with the announcement by FBI Director James Comey that former Secretary of State Hillary Clinton will not face prosecution for her mishandling classified information and Comey’s subsequent testimony in front of the House oversight committee. At the heart of the case was Secretary Clinton’s decision to use a private email server (housed in her home in New York) to conduct all of her personal and work-related communications.

On Tuesday morning, two days after the Bureau’s three and a half hour interview with Mrs. Clinton, Comey held a highly unusual press conference. It was unusual in the sense that Comey laid out a devastating case against Clinton, citing her “extreme carelessness” in the handling of classified information but then said that no “reasonable prosecutor” would bring criminal charges because of it.

In this article, I’m going to go through eight things we’ve learned this week and then finish by analyzing the politics of the outcome.

Let’s start with the eight things we learned:

1. Hillary Clinton, who is seeking to become the President of the United States, committed a felony punishable by ten years in prison.  The relevant law, passed in 1917, 18 USC 793, makes it a felony to “mishandle classified information either intentionally or in a grossly negligent way.” Comey used the term “extreme carelessness.” If you look up synonyms for the word “negligence” the first word you get is “carelessness.”
2. Fortunately for Mrs. Clinton, she committed a felony that, according to Comey, the Justice Department has only prosecuted once in 99 years. Comey used the term “mens rea,” which is “the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.”  I don’t personally agree with Comey’s logic in this particular case (more on that later), but he is correct that precedent would seem to indicate that this is one law that Justice doesn’t care to prosecute.
3. Hillary Clinton has been habitually lying to the press for the past 16 months regarding the use of her personal email server. She told us first that she never “sent or received” any classified material, then that she never sent or received any material that was “marked classified” at the time. Comey shredded that lie in his Tuesday press conference, indicating that 110 emails were in fact classified at the time they were sent or received.
4. Clinton also told the world that she and her lawyers turned over to the State Department all work-related emails when asked (approximately 30,000) and that they deleted another 30,000 that were personal in nature. This was an obvious load of crap and Comey exposed this lie as well, indicating that (in a variety of forensic ways), the FBI uncovered “several thousand” work-related emails that were not turned over to State. He also indicated that there were many, many more that were lost forever and unrecoverable.
5. Comey also stated that Mrs. Clinton “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.”
6. Although he was not recommending a criminal referral to the Justice Department, Comey did say that “this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences.” When pressed by Representative Jason Chaffetz Thursday in his House oversight committee testimony, Comey indicated that “you could be walked out” of the FBI if you mishandled classified material in the manner that Mrs. Clinton did.
7. Secretary Clinton may well have committed perjury when she testified last fall to the House committee investigating the Benghazi terror attack. During that inquiry, she repeated her bogus claim that “there was nothing marked classified on my emails, either sent or received.”  Comey did indicate that he did not believe that Hillary lied to the FBI but dodged questions about whether she lied elsewhere
8. The comparison, oft-cited by Donald Trump and Republicans, of Clinton’s case to that of General Petraeus was invalid, according to Comey, because Petraeus had lied to the FBI and knowingly passed classified intelligence to his biographer/mistress.

What we did NOT learn was whether the FBI was still investigating any conflicts of interest between Mrs. Clinton’s role as Secretary of State and the Clinton Foundation. Comey would neither confirm or deny it when asked during his House testimony.

Let me start by saying that I, like most lawmakers and pundits, believe James Comey to be a straight shooter although I disagree with his conclusions. Anyway, let’s unpack these eight things that we learned:

1. Hillary’s “extreme carelessness:” you can’t use a term that sounds more like “gross negligence” than “extreme carelessness” so let it sink in: Hillary Clinton committed a felony by negligently handling classified material even if she did not intend to.
2. Justice doesn’t prosecute this law: I will have to take Comey at his word on this, that only one case in 99 years has been prosecuted under the relevant statute and that (“mens rea”) Secretary Clinton did not intentionally commit a crime. This is the crux of the issue. Nobody believes that it was Hillary’s intention to mishandle classified information but I still disagree with Comey’s conclusion on two fronts. The first, it is very clear that her public statement that her choice of a private email server was based on the “convenience” of using just one device was pure poopycock from the beginning. She may not have intentionally mishandled classified information, but she sure darn made a conscious choice that inevitably led to its mishandling. Second, to the best of my knowledge, Mrs. Clinton is the first person seeking to become Commander in Chief to clearly violate this law, intention be damned. Hers is a special case no matter how you slice or dice it. Her violation of the statute was based on obsessive need for privacy and control over her government-related communications. You can’t prove that she did it for that reason but you can prove she did it, period. A criminal referral was warranted in this instance. The biggest thing that I really don’t get is, if Justice doesn’t prosecute violations of this statute, what Comey’s team thought they would find. As I said before, I don’t think anybody really thought that her goal was to mishandle classified intelligence, it was to keep personal control over who would see what. It’s not unreasonable to call this whole matter a big waste of time and money.
3. Hillary Clinton has been habitually lying: this was painfully obvious for anybody with half a brain but it has now been proven by the FBI’s investigation. If the Republicans had a real presidential candidate, they would be flooding the airwaves with television and radio ads comparing Hillary’s words to Comey’s at his press conference.
4. Mrs. Clinton’s team didn’t turn over all of her work-related emails: another visibly transparent falsehood. We were supposed to believe that the Secretary of State for the United States of America spent half of her emailing-time on personal business? We’ll never know if anything was important in the tens of thousands of permanently deleted communications.
5. Possible that “hostile actors” gained access to her account: this is truly troubling. What kind of clueless lackeys did Mrs. Clinton surround herself with that nobody would tell her that her Blackberry was hack-able in foreign lands? I wouldn’t expect the technologically challenged Hillary to know this but somebody should have known and told her. This goes to the larger point about the server itself: there was nobody in Hillary-land to tell her “No, Hillary, don’t do this, it’s a bad idea.”
6. Potential “other” consequences: this is the biggie, in my mind. What Comey was really saying when he said that a person in “similar circumstances” would face other “consequences,” he’s talking about security clearances. What he’s saying is a soldier, sailor or pilot in our Armed Forces would be dishonorably discharged if they mishandled classified intelligence. He’s saying that a person who clearly mishandled classified material would not be able to get a security clearance from the FBI, CIA or State. So what he’s really saying is that if Hillary Clinton was running for any job other than President of the United States, she could not get a security clearance. But since she’s running to be the boss of all of the little people who would not be able to get a security clearance, it’s OK.
7. Clinton might have committed perjury: when Comey mentioned on Thursday that the FBI had not looked into Hillary’s Benghazi testimony under oath in which she said she had not sent or received emails “marked” classified, he said that wasn’t in the purview of the investigation and that he needed a referral from the House committee to investigate. Congressman Chaffetz said he’d get one within a few hours. This seems like a black and white case to me: she said it under oath, it wasn’t true. Years ago, the Justice Department spent millions of dollars in an unsuccessful attempt to convict baseball pitcher Roger Clemens of perjuring himself in front of Congress about his alleged use of steroids. Still, I doubt you’ll see anything made of it. Hillary’s argument could be that she didn’t know that the classified material she emailed was marked as such. Hard to prove either way: she either lied or was clueless, not good for her either way.
8. The General Petraeus comparison: Comey refuted the comparison so definitively that Republicans and Trump would be wise to stop using the analogy.

OK, let’s now look at the politics of this. Until Tuesday, there always remained the possibility of a criminal indictment against Hillary Clinton right before the Democratic convention. This is likely the biggest reason why Bernie Sanders has remained in the race even though he lost. Now that we know that no indictment is forthcoming, Hillary is the nominee for better or worse.

I truly believe that, at the heart of Director Comey’s decision-making process, he concluded that the best course of action was to let the American people be judge and jury over Mrs. Clinton’s conduct. Whether you agree with it or not, he is on solid ground regarding the lack of precedent in prosecuting cases of this type. What was unusual is that, rather than quietly sharing his findings with the Justice Department (specifically Attorney General Loretta Lynch), he laid out Hillary’s sins in the press conference. He handed the GOP its talking points and provided the soundbites for its attack ads and thus pissed off partisans on both the left and the right. The Republicans are mad that he recommended no charges; the Democrats are mad that he was so transparent about his findings in the case.

Because Comey went public with his findings, the correct GOP response is to reject his conclusions and make hay about what we now know, that Hillary lied through her teeth about this for 16 months. Stop talking about conspiracies. The Arizona tarmac meeting last week between Bill Clinton and AG Lynch was the perfect fodder for Trump’s “rigged system” claims but Comey really diffused that. I know it was incredibly suspicious that Hillary was boarding Air Force One to hit a campaign stop with President Obama right as Comey was talking. I think it’s pretty clear that Obama already knew that Hillary was not going to a recommendation for prosecution from Comey but he likely did NOT know that Comey was going to lay out the case against her.

Anyway, talking about conspiracies is not helpful anymore. Trump and his surrogates need to pound this home: she lied and the FBI had proof. They need to pound it home that she would not be able to get a security clearance at the FBI. They need to pound it home that, if she were a soldier in the armed forces that she wants to command, that she would be discharged from those duties because of what she did.

What Trump should not, not, not do is say that he will try to put Hillary Clinton in jail if he is elected president. If he does that, he loses. He will satisfy the blood lust of partisans on the right but he will lose the independent vote. People have very different feelings about how Hillary handled her email situation and what consequences she should face. The message should be like this:

“What Crooked Hillary did was wrong, it was criminal, it was reckless and wholly disqualifying for somebody who wants to be President of the United States. Because of her actions, millions of dollars of taxpayer money were wasted. Precious FBI resources that could have been used to hunt terrorists were needed to investigate her criminal behavior. Despite this, when I am elected, I will not aggressively pursue criminal sanctions against her. Just as Gerald Ford pardoned Richard Nixon, I will pardon Mrs. Clinton. Putting her in jail and spending more taxpayer dollars on the matter serves nobody. But you, the American people, cannot, CAN NOT reward her criminal behavior by making her Commander in Chief.”

Trump would accomplish two things with stump speech like that. First, it would soften his image a little bit, take some of the “mean bully” out of his persona. No matter how people feel about what Hillary did regarding her emails, you’re not going to find a majority that want to see her in jail. The second thing, the Nixon comparison, speaks for itself.

As for the politics on the Democratic side, they’re fairly easy for Hillary’s surrogates but not as much for her. Her surrogates can just say, “it’s over, it was a mistake, she’s apologized, it’s was always overblown, let’s move on.” For Hillary herself, it’s a little more complex. Although she has yet to give a press conference this year (something that should be really troubling for any voter who wants to see any transparency from the next presidential administration), she is going to eventually have to answer questions to some one (even if it’s a softball friendly interview on MSNBC) about her repeated lies and there are no good answers for her. The only answer she can give is something like, “sorry, I’m a clueless old person, don’t really understand technology, didn’t realize those emails were actually classified at the time.” That’s about the best I can come up with for her: the alternative is to call Comey a liar, which is not credible.

If Hillary Clinton were running against a traditional Republican candidate, I would argue here that Comey’s press conference on Tuesday would be the end of her chances to win the Oval Office. But Donald Trump is the gift that keeps on giving. When you’re opponent’s campaign is on the ropes as Clinton’s has been for the last two weeks (starting with the idiotic meeting between her husband and Lynch), you focus on that message alone. But Trump couldn’t help himself: he had to create the “Star of David” controversy and express admiration for the way Saddam Hussein was good at killing terrorists.

Because Trump is the gift that keeps on giving, Hillary will continue to pound the theme that he’s unfit to be Commander in Chief because of his temperament and ultimately, she’s probably going to win despite having committed a felony. What a sorry state of affairs.

Thanks for reading.

Chris Bodig