Clinton, the presumptive Democratic presidential nominee, lied repeatedly to the American people about her handling of classified material, which Comey called "extremely careless." There were over a hundred emails in 52 chains that were found to contain classified information, including at least eight at the Top Secret or "Special Access Program" level. Clinton both sent and received classified information on "unclassified personal servers not even supported by full-time security staff
," which Comey said may have led to "hostile actors" accessing her system, especially when she foolishly used that system on foreign soil.
Yet for all her obvious breaches of classified handling regulations, and despite seeming to meet all the criteria for a felony prosecution based on the relevant statute
, Comey also said Tuesday that a "reasonable" prosecutor would not press charges, and that he intended to inform the Department of Justice of this opinion.
All this is despite the reality that the facts are not in dispute -- and despite these facts painting Clinton and her team in a far from flattering light. Indeed, Clinton's conduct with her email system was reprehensible, as were her mendacious defenses of it.
For a start, she has been claiming for over a year that there was nothing "marked classified," or classified "at the time," in her email system. This denial was essential to the case she has made, because Clinton was well aware that sending classified national security information over an open email system is not just a dereliction of duty, but illegal.
Now we are told that, yes, Clinton did in fact send and/or receive classified information, including some at the most sensitive classification level in the government system. Comey described this all as "extremely careless," yet said no charges should be filed. We are told this is because although there was transmission and retention of classified information, it did not rise to the standard of "gross negligence" under the relevant statute. This is legalistic gymnastics meant to justify what is clearly a political decision. Gross negligence does not require proving intent. And in any case, it is a pretty big leap to think that Clinton was entirely unaware that she was reading or typing out information that in many cases were egregious security violations. It doesn't seem plausible that Secretary of State Clinton was unaware that she was violating the rules with her email system; more likely, she just didn't care.
And now she will likely get away with it, at least legally speaking; Clinton is almost certain to avoid an indictment under President Barack Obama's Department of Justice, though the final decision rests in the hands of, as we are told, "career prosecutors" who will review the FBI's findings.
Clinton partisans will take the FBI recommendation as the "all clear" sign to ratchet up the pressure, and will likely adopt the line that this is all old news, and that like Benghazi, simply another conspiracy ginned up on the right. They will expect to ride this talking point all the way until Election Day.
Unfortunately for the Clinton camp, narrowly avoiding a felony prosecution for actions taken while secretary of state isn't the same thing as vindication. On the contrary, a secretary of state who showed "extreme carelessness" in her handling of classified information should be disqualified from holding higher office -- or even a security clearance, for that matter -- and be made to answer for her recklessness.
For those who have held or currently hold security clearances, Comey's judgment -- not about the facts, but the interpretation of those facts -- is particularly odious. A less-connected government servant, without the enormous machinery of the Democratic National Committee and the Clintons at their back, would at a minimum likely be stripped of security clearance and fired for exactly what Clinton did. But if a lowly GS-9 could have his or her career ended for taking certain actions, a reasonable person should find that behavior completely unacceptable in a future commander in chief. Clinton swore an oath, and had a sacred duty to protect classified information: She failed, repeatedly.
Still, all hope for justice is not lost. While we await final word from the Department of Justice on this case, it should be kept in mind that the statute of limitations would not be up for possible charges against Clinton in 2017. Should her Republican opponent win, a new attorney general may decide to look at the FBI's findings and come to a very different conclusion about prosecution. Whomever that new AG might be, we can assume he or she would avoid 30-minute-long, impromptu tarmac chats
with the husband of the woman at the center of the FBI's most politically explosive investigation.
That would be a good start.
In the meantime, for those who believe in the rule of law, the FBI's recommendation is deeply depressing. It is also very telling that for the Clinton side of this argument, avoiding felony prosecution is cause for celebration. That, more than anything else, seems to be a summary of the Clinton political brand.
Hopefully the American people will take notice of all this. Madame Secretary looks like she will evade justice in the courts, but she could still be held accountable at the ballot box.