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.