Yours truly is not a lawyer; never was a lawyer; has no legal education aside from one undergraduate class, harbors no current ambitions to be a lawyer; hasn’t wanted to become one for decades (since the thrill of visiting my late father’s office as a kid wore off); and doesn’t even find lawyer TV shows, movies, or novels all that interesting. Truth in advertising: I did take the law school admission test – because in economically stagnant mid-1970s America, what else was a humanities major supposed to do?
So I’m not qualified to comment from a legal standpoint on the legal aspects of the FBI’s decision not to indict Hillary Clinton. But here are some thoughts from the standpoint of common sense – with a special focus on the Bureau’s judgment that “no reasonable prosecutor” would recommend filing criminal charges against the presumptive Democratic presidential nominee and former Secretary of State.
First, Bureau Director James Comey undercut the “reasonable” part of this contention with his declaration that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” You don’t have to be nitpicker to recognize that this phrasing indicates that the FBI found some evidence of these intentions. I understand that the American system of justice grants prosecutors considerable discretion on such matters. But this discretion surely is not limitless. Is it really standard practice to absolve the subject of an investigation because some (unspecified) standard of clarity wasn’t met? Above all, was there no “reasonable” argument for allowing a trial to settle the question?
Second, Comey seemed to set an awfully high bar for indictment. Explaining that “Responsible decisions…consider the context of a person’s actions, and how similar situations have been handled in the past,” Comey presented a list of conditions that presumably would have to be satisfied:
“[C]learly 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.”
Was Comey saying that all four conditions needed to be met? If so, he already ruled out the first. But the second looks fishy. Why do “vast quantities of materials” need to be exposed? Why not, say, a single document saying, e.g., “We’re attacking ISIS on June 1, at 4 PM EST”? Does quality, in other words, have no relevance in the FBI’s calculus?
Moreover, the contention that nothing qualifying as obstruction of justice could be found seems to clash with the finding that Clinton’s lawyers “cleaned their devices in such a way as to preclude complete forensic recovery. ” Since when do honest lawyers assisting an official criminal investigation not err on the side of caution? Indeed, Comey’s conclusion about the lawyers’ conduct was anything but conclusive:
“Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”
That is, there’s important evidence that’s still missing. And the Bureau qualified its determination with the phrases “we believe” and “reasonable (that legal mainstay again!) confidence.”
Third, Comey’s overall description of Clinton’s conduct looks like a classic instance of hair-splitting. As he sees it, her behavior was not “grossly negligent” – the apparent standard for criminality. Instead, it was “extremely careless.” What on earth is the difference outside the universe of apologists and public relations flacks?
Moreover, Comey’s definition of “gross negligence” evidently doesn’t encompass his findings that (his own words):
>“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”: and
>“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. ”
None of these points is meant to suggest that Comey’s judgments were incontrovertibly wrong or even unreasonable. They are meant to suggest that the call not to indict Clinton was incredibly close – so close, in fact, and raising so many further questions, that as suggested above, the proper place to resolve them is not inside a prosecutor’s office. It’s at an open criminal trial.
After he delivered the statement, Comey briskly walked off the stage without dealing with the crowd of slavering journalists assembled in front of him. That’s the recent decision of his I understand best.