FBI director Comey has just given a statement on his agency’s investigation of Hillary Clinton’s handling of classified email.
We read (my emphasis):
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.
Got that? Just to be clear, here’s what 18 U.S. Code § 793 says about negligence:
(f) Whoever, being entrusted with or having lawful possession or control of any document… relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Note: “…through gross negligence permits the same to be removed from its proper place of custody…”; “…having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust…”
On even the most charitable (and completely, utterly, laughably implausible) interpretation — that Mrs. Clinton simply had no idea she was doing anything wrong — has she not amply satisfied these criteria?
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.
For example, seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. 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. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails 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.
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government.
With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. 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.
About what we had expected. But then:
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. There are obvious considerations, like the strength of the evidence, especially regarding intent.
Recall that just above, Director Comey said that it was a felony to “mishandle classified information either intentionally or in a grossly negligent way“. So why does intent matter? And even if it does, can anyone doubt that Hillary Clinton intentionally, by approving, creating, and using her own private and unsecured server, removed classified documents from their “proper place of custody”?
How do you square this circle? How can Director Comey, after laying out the criteria for prosecution, then reading us a damning litany of gross malfeasance that would have any of the rest of us clapped in irons, say that “no reasonable prosecutor would bring such a case”? The FBI’s focus on intent is as we see above, irrelevant. The only possible explanation here is politics and power. (And as one online commenter said about Mrs. Clinton in the wake of the FBI’s account of her behavior, “only her withered husk of a soul is preventing her from bowing out of the race in shame.”)
The headlines from the usual Cathedral organs pass over the litany — in the hope that it will recede from memory — and focus on the FBI’s recommendation. Today, President Obama is out on the campaign trail with Mrs. Clinton; he left on this outing even before Mr. Comey delivered his remarks. Would he have done so if he hadn’t known what was coming?
The mask, and the gloves, are off. All pretense of rule of law, representative government, Constitutional order, and respect for the intelligence and opinions of the American people are now publicly shredded. Power is everything — and the Clintons, and the Obama DOJ, have it. They are mocking us, taunting us, jeering at us. We ask for justice and accountability — and they laugh, and snap their fingers in our faces. What are you going to do about it, American citizens?
Here’s one polemic response, posted yesterday by Kurt Schlichter. (It was also linked to by our commenter Whitewall in our previous thread.)
This is how public trust — and, as night follows day, public order — die.