On the Matter of Clinton’s E-Mails

One would have thought they’d be happy.

When FBI Director James B. Comey announced the results of his bureau’s investigation into the security lapses in Hillary Clinton’s e-mails during her tenure as Secretary of State, he pretty much gave them everything they wanted. Were she and the State Department careless in their handling of sensitive information? Were e-mails deleted? Did they know they were using an unsecured system? Was information that was classified at the time sent over that system? Yes, , yes, yes, and yes. Serious matters, all. And all things that anyone opposing Clinton in a campaign should hold her feet to the fire for.

But because he did not recommend that charges be brought against her, the GOP – well, at least some of their mouthpieces – is having a hissy fit and demanding that the investigation be investigated.

Comey made it quite clear in his statement that it wouldn’t be worth prosecuting Clinton on any charges the Justice Department might care to bring:

“In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

Although he’s not a prosecutor, Comey was using “prosecutorial discretion” in his recommendation. Our system of justice simply doesn’t have the resources (even at the federal level) to go after every criminal and see every case through to its end. Prosecutors are given great leeway in which cases they choose to prosecute. Generally, they go after ones where there is a clear likelihood of a conviction. Not only does failure waste everyone’s time and money, it doesn’t look good for their career.

Remember, if the Justice Department were to indict and prosecute Clinton, she’d be allowed to defend herself, with all the legal assistance she can afford.

And even I can see that she’s got some good arguments to use in her defense.

While “everyone else was doing it” is a cheap and lazy argument, it can easily be said that in her use of a private server, she was following the policies set by her predecessors. And as the head of her department, it was up to her to set that department’s policies (which is true). True, she’s not above the law, but when it comes to policy, she was the one who made a lot of the decisions on what was not only department policy, but whether or not some of the information shared should be classified or not in the first place.

The most significant factor in any possible prosecution is the need to prove that security was compromised “knowingly and willfully”. It’s the deliberate intent that matters; not negligence. And that’s extremely hard to prove. Especially when in a situation like this, Clinton can state that she was assured that her setup was completely secure – and there’s nothing anyone can do otherwise. It’s also clear that there weren’t vast quantities of materials being left in the open. There really isn’t enough to justify  making a federal case out of it.

But this is not to say that Clinton gets off scot-free, of course. She was careless and negligent, and if she were still part of the federal government (guess what: as a candidate for the presidency, she’s technically a private citizen – she’s not on the government payroll), she would be – and should be – subject to at least a reprimand.

But with all their whining about a “fix” or calling for an investigation of the FBI’s investigation, the GOP is acting like a spoiled brat who just got a free ice cream sundae and is still demanding that the shop manager be fired because the server forgot to put the cherry on top.

If they keep complaining like this, the public and the media are going to get tired of it all – and then the GOP will be stuck with having to defend their buffoon of a candidate. Seriously? Praising Sadaam Hussein for being tough on terrorists???

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