Our two-tiered justice system on full display


As Robert Mackey writes, the decision by the FBI to not prosecute Hillary Clinton for her use of a private email server is being celebrated by the Clinton camp even though the FBI says that she had been “extremely careless” in her treatment of classified material and had lied repeatedly about whether she had sent classified emails through her unclassified private server.

Alex Emmons writes that the decision by the FBI director to declare that Clinton would not be prosecuted was a gross overreach of his authority, since that is a decision that should be made by Justice Department prosecutors and not the FBI, whose role is to investigate. Although Attorney General Loretta Lynch had said that she would not be making the decision in the wake of Bill Clinton’s extraordinary private meeting with her, the department of justice cannot abdicate its responsibilities and it should have been left to the career prosecutors at the justice department to decide.

But Matthew Miller, who was a spokesman for the Department of Justice under Attorney General Eric Holder, called Comey’s press conference an “absolutely unprecedented, appalling, and a flagrant violation of Justice Department regulations.” He told The Intercept: “The thing that’s so damaging about this is that the Department of Justice is supposed to reach conclusions and put them in court filings. There’s a certain amount of due process there.”

Legal experts could not recall another time that the FBI had made its recommendation so publicly.

Glenn Greenwald says that the way that the FBI and the Obama administration handled the Hillary Clinton email controversy glaringly reveals how we have a lenient and forgiving system of justice for the rich, powerful, and well connected and a much harsher, highly punitive system for the rest of us, even if the former act out of pure self-interest and the latter act out of selflessness and for the public good.

Secrecy is a virtual religion in Washington. Those who violate its dogma have been punished in the harshest and most excessive manner — at least when they possess little political power or influence. As has been widely noted, the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined. Secrecy in D.C. is so revered that even the most banal documents are reflexively marked classified, making their disclosure or mishandling a felony. As former CIA and NSA Director Michael Hayden said in 2010, “Everything’s secret. I mean, I got an email saying, ‘Merry Christmas.’ It carried a top-secret NSA classification marking.”

People who leak to media outlets for the selfless purpose of informing the public — Daniel Ellsberg, Tom Drake, Chelsea Manning, Edward Snowden — face decades in prison. Those who leak for more ignoble and self-serving ends — such as enabling hagiography (Leon Panetta, David Petraeus) or ingratiating oneself to one’s mistress (Petraeus) — face career destruction, though they are usually spared if they are sufficiently Important-in-D.C. For low-level, powerless Nobodies-in-D.C., even the mere mishandling of classified information — without any intent to leak but merely to, say, work from home — has resulted in criminal prosecution, career destruction, and the permanent loss of security clearance.

This extreme, unforgiving, unreasonable, excessive posture toward classified information came to an instant halt in Washington today — just in time to save Hillary Clinton’s presidential aspirations. FBI Director James Comey, an Obama appointee who served in the Bush DOJ, held a press conference earlier this afternoon in which he condemned Clinton on the ground that she and her colleagues were “extremely careless in their handling of very sensitive, highly classified information,” including top-secret material.

Despite all of these highly incriminating findings, Comey explained, the FBI is recommending to the Justice Department that Clinton not be charged with any crime.

Looked at in isolation, I have no particular objection to this decision. In fact, I agree with it: I don’t think what Clinton did rose to the level of criminality, and if I were in the Justice Department, I would not want to see her prosecuted for it. I do think there was malignant intent: Using a personal email account and installing a home server always seemed to be designed, at least in part, to control her communications and hide them from FOIA and similar disclosure obligations. As the New York Times noted in May about a highly incriminating report from the State Department’s own Auditor General: “Emails disclosed in the report made it clear that she worried that personal emails could be publicly released under the Freedom of Information Act.”

The Obama-appointed FBI director gave a press conference showing that she recklessly handled top-secret information, engaged in conduct prohibited by law, and lied about it repeatedly to the public. But she won’t be prosecuted or imprisoned for any of that, so Democrats are celebrating. But if there is to be anything positive that can come from this lowly affair, perhaps Democrats might start demanding the same reasonable leniency and prosecutorial restraint for everyone else who isn’t Hillary Clinton.

There is of course no chance of that ever happening. Our oligarchy protects its own (party label is irrelevant) from the reach of the rabble who have such quaint ideas that justice is blind and that we are all equal in the eyes of the law.

Comments

  1. Randall Lee says

    I don’t think what Clinton did rose to the level of criminality, and if I were in the Justice Department, I would not want to see her prosecuted for it.

    My respect for Mr. Greenwald diminishes as a result of this opinion. He is well aware that ‘intent’ is not required in reaching a conclusion of “criminality” under the applicable statutes.

    We are no longer a nation of laws. (Never were.) We are a nation of hypocritical men.

    I suspect Greenwald will vote for Clinton. like so many Americans, he will choose what he perceives to be the lesser of the two evils that masquerade as a viable choice.

    The purported duty of those in the Justice Department is to apply the law as it is written and allow a jury to determine whether Hillary is guilty. That is how it works with most people.

    Hillary is as slick as Willie, I mean Billy. As relates to their ability to escape criminal prosecution they are like Teflon Twins.

    But the saddest thing about this is that there are actually people willing to ignore all of her acts and that want someone like her to serve as President.

    Is it any wonder that the American people are the laughing stock of the world?

  2. Holms says

    Is it any wonder that the American people are the laughing stock of the world?

    I submit that the likes of W. Bush, Palin, and Trump contributed far more to that laughter than the Clintons.

  3. dphuntsman says

    Folks, all this screeching (sorry) misses all the main points. See the NY Times today for several factual articles, including what Comey actually said, and things that puts it in context. As a long-term fed employee (41 years and counting), I basically nodded at the end of it.

    And keep in mind, what this former SecState did, as is pointed out in those articles, is no where near as bad as David Petreus did – and he got off. He admitted, in writing, to willfully giving marked and known classified material to his lover so she could write a book about him to serve his own purposes. And he got away with a misdemeanor. That’s even more egregious.

    BUT, I wish to hell Comey would have ended his presentation with this sort of statement: “I will end by noting that, as long as Administrations, headed by whatever party, continue to do what the last three have done – to allow senior officials to exempt themselves from using official systems for official business, to risk security breaches, to flout open records laws – this type of thing is almost certain to occur again, and again, putting American security, systems, and indeed, accountable government at risk”.

    THAT”S what is being missed with all the screeching, in my view.

  4. NL says

    “I would not want to see her prosecuted for it. I do think there was malignant intent: Using a personal email account and installing a home server always seemed to be designed, at least in part, to control her communications and hide them from FOIA and similar disclosure obligations.

    And that’s a good thing? That’s OK? WTF Greenwald?

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