Last week, the FBI made its recommendation to the Justice Department not to prosecute Hillary Clinton for her handling of classified information while secretary of state. Attorney General Loretta Lynch quickly accepted it, announcing that she was officially closing the case with no charges filed.
In theory, of course, Lynch could have rejected the bureau’s recommendation. The FBI investigates alleged criminality and recommends to department prosecutors how they might proceed in a given case. The prosecutors aren’t bound by the bureau’s recommendations. But here, with FBI director James Comey saying that no reasonable prosecutor could bring a case against Clinton, it was hard to imagine that a Justice Department under Loretta Lynch would disagree with Comey and seek an indictment.
We are left, then, with the jury of the American people, or at least those who plan to vote on Election Day. They have the power to deny Clinton what she so long has wanted: the presidency. The email fiasco shows—as if more evidence were needed—why voters should refuse her the land’s highest office.
We say that notwithstanding our conviction that as a general matter law enforcement officials should not criticize conduct on the part of those they investigate but find no basis for bringing charges against, as Comey did.
The FBI assumed its investigative role after it was discovered that Clinton had used a personal email server during her tenure as secretary of state. Whether classified information was transmitted on that personal system became the focus. As Comey explained in his statement, “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.”
While Comey could not recommend prosecution on the basis of those two statutes, his statement, wrote Chris Cillizza of the Washington Post, was “a wholesale rebuke of the story Clinton and her campaign team have been telling. . . . 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.”
Comey said there were classified chains that “involved Secretary Clinton both sending emails about those matters and receiving emails from others about the same matters.” And that there “is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”
Comey maintained, “None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail.”
The bureau found no direct evidence that “hostile actors gained access to Secretary Clinton’s personal email account” but concluded that it was possible. “We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account,” Comey said, and her use of a personal email domain was “known by a large number of people and readily apparent.” He noted that Clinton “used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.”
A Wall Street Journal-NBC News poll last month found that 69 percent of registered voters regard Clinton’s “truthfulness as a serious enough issue to be a concern.” With media organizations reporting the classic contrast between what she said and what law enforcement found, the issue of truthfulness may become more of a concern for more voters in the campaign ahead. Just three days before Comey read his statement, Clinton declared, “Let me repeat what I have repeated for many months now. I never received nor sent any material that was marked classified.” That’s not true.
If elected in November, Clinton would take an oath of office obligating her to faithfully execute the office of president of the United States and to preserve, protect, and defend the United States. Her handling of classified information puts in doubt how faithful she would be to that oath.
Specifically, as president, she would be obligated under Article II Section 3 of the Constitution to “take Care that the Laws be faithfully executed.” That would include the laws under which the bureau investigated Clinton. Keep the words of that take-care clause in mind as you read Comey’s description of the bureau’s essential conclusion: “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.”
Did Comey choose the word “careless” with the take-care clause in mind? Probably not—but interesting if he did.
Not criminal but careless, and extremely so. This is the Hillary Clinton the FBI sees. Should she be the -person charged with taking care that the laws are faithfully executed?
Another question for Election Day.
