Is Hillary Clinton too big to indict?
| Washington
Is Hillary Clinton too big to fail? In other words, does her status as the presumptive Democratic nominee for president protect her from criminal charges related to her use of a personal server for State Department communications?
That鈥檚 what top Republicans are saying in the wake of Tuesday鈥檚 announcement by Federal Bureau of Investigation Director James Comey that the bureau won鈥檛 recommend prosecution of Mrs. Clinton for her handling of classified emails. It鈥檚 one reason why the GOP-controlled House will hold a hearing Thursday on the FBI鈥檚 decision.
That hearing could be a pivotal forum for Clinton鈥檚 foes. They鈥檇 like to portray the former secretary of State as the undeserving beneficiary of what presumptive GOP nominee Donald Trump labels a 鈥渞igged system.鈥�
After all, voters already give Clinton low marks for trustworthiness. Anything that reinforces that feeling could be good for the Trump campaign. Plus, it could keep the spotlight off Mr. Trump鈥檚 own controversies 鈥� at least, for a while. For Trump supporters, extending the period of Clinton鈥檚 troubles is now job one.
鈥淭his is one of the reasons why people are so dissatisfied, so upset about government. They think that people live by a different set of rules, and the Clintons, they take the candle on this one,鈥� said House Speaker Paul Ryan during an appearance Tuesday on Megyn Kelly鈥檚 Fox News show.
Why Comey essentially said 'never mind'
Mr. Ryan and other Clinton critics say that the split nature of Director Comey鈥檚 press conference was disorienting.
At first, the FBI director listed what Clinton did wrong, noting among other things that on her private server she鈥檇 sent and received messages that were classified at the time. Her handling of secret material was 鈥渆xtremely careless,鈥� Comey said.
It seemed as if he might be leading up to a recommendation that the Justice Department prosecute Clinton, after all.
And then he said, in essence, 鈥渘ever mind." The agency would not urge the Justice Department to prosecute Clinton, he said. 鈥淣o reasonable prosecutor would bring such a case,鈥� according to Comey.
Why not? President Obama鈥檚 Justice Department has a history of pursuing officials who leak secrets, points out journalist Glenn Greenwald, who wrote some of the initial reports on classified information provided by ex-National Security Agency contractor Edward Snowden. The Obama administration has brought more cases under the 1917-era Espionage Act than all previous administrations combined.
While the Snowden case hinged on massive leaks, many of these prosecutions didn鈥檛. Former Central Intelligence Agency employee Jeffrey Alexander Sterling and former NSA executive Thomas Andrews Drake were both convicted of various charges related to small amounts of classified material.
鈥淗ad someone who was obscure and unimportant and powerless done what Hillary Clinton did 鈥� recklessly and secretly install a shoddy home server and worked with Top Secret information on it, then outright lied to the public about it when they were caught 鈥� they would have been criminally charged long ago, with little fuss or objection,鈥� writes Mr. Greenwald at聽.听
The importance of motives
Perhaps. Motivation is a factor here, however. Both Messrs. Sterling and Drake leaked information to reporters. (As did Mr. Snowden, obviously.) Clinton did not.
In Clinton鈥檚 case, there is no evidence of clear and willful mishandling of intelligence, or any inference of disloyalty to the United States, according to the FBI鈥檚 Comey. That鈥檚 a big reason why she wasn鈥檛 charged.
鈥淚n looking back at our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,鈥� said Comey at his Tuesday press conference.
But wasn鈥檛 isn鈥檛 the same as couldn鈥檛. Under federal law, it鈥檚 illegal to handle classified information with 鈥済ross negligence.鈥� And Comey himself said that Clinton acted with 鈥渆xtreme carelessness.鈥� Aren鈥檛 those phrases descriptions of pretty much the same thing?
They might be. However, Comey also emphasized that an examination of past cases played a large role in the FBI鈥檚 decision on Clinton. What that means, according to right-leaning Washington Post pundit Jennifer Rubin, is that the FBI did indeed think Clinton had violated federal law 鈥� but they could find no instances of anyone being prosecuted under the 鈥済ross negligence鈥� standard. They weren鈥檛 about to set a new precedent and blow up US presidential politics in the bargain.
鈥淲e actually do require a high level of proof for prosecuting high government officials so as to avoid politicized harassment of public officials,鈥澛�. 鈥淐all that a double standard of justice, but frankly it鈥檚 one with which investigators and prosecutors are very familiar.鈥�
Rubin says this result will not satisfy everyone but might still be judicious. Comey鈥檚 description of Clinton鈥檚 actions regarding her email server was scathing. Many of her defenses have been exposed as untruths. Voters can now make up their own minds. It is not the fault of the FBI that Clinton鈥檚 electoral opponent is someone with even lower public approval ratings.
