And just like that the long farce is over. FBI Director James Comey announced Tuesday that Hillary Clinton and her aides were “extremely careless” in handling classified material when she was Secretary of State, but that he would not be bringing charges against her.
This announcement comes on the heels of a very Clinton-esque weekend in which the presumptive Democrat presidential nominee because the first major party candidate to be interviewed by the FBI as the subject of a criminal investigation, which she followed up by attending a performance of the Broadway musical Hamilton, where she went backstage to meet with the show’s star.
It’s an itinerary only Clinton could have. One mixed with equal parts criminal probe and elite privilege. A dash of something that literally no one wants to have happen to them and a splash of something that an average person could never hope to do.
Then again, the result of the investigation is something that nobody else would get to experience either. She’s the only one whose husband get’s to meet with the Attorney General on her private plane just days before the announcement of no charges. She’s the only one who gets endorsed by the sitting president, who just so happened to appoint the FBI Director (who conducted the investigation) and the Attorney General (who would have ultimately made the decision whether to prosecute). And perhaps most amazingly, she’s the only one who would literally have the Espionage Act re-written and reinterpreted in order to get off the hook.
Take, for instance, Comey’s remarkable admission:
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…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.
It’s remarkable because within a single sentence, Comey perfectly contradicts himself. In order for Comey to find that Clinton did not commit a crime he had to completely ignore the underlying statute, which reads in relevant part:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, 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,
Gross negligence is the standard here, which has little to do with state of mind or intent. The fact that Comey said she was extremely careless is the relevant fact at issue because it gets to her negligent treatment of valuable security intel. As Andrew McCarthy writes for National Review:
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
Judicial activism is a big enough problem, did we really need to add appointee activism to the list of things eroding the rule of law? Then again, maybe it never mattered in this case because the Clintons are so clearly above the law.