FBI: Hillary Clinton Broke the Law, We Just Dont Really Care

by Alex Griswold

The FBI inquiry into the Clinton email scandal came to an ignoble end Tuesday in a manner that few could have predicted: one of the nation’s highest-ranking civilian law enforcement officers laying out for a full ten minutes all the evidence indicating that a Secretary of State broke the law, followed by the Shyamalanian twist that he didn’t believe said Secretary should be prosecuted.

And yes, by any straightforward interpretation, Hillary Clinton broke the law. The law bans negligently hosting classified information in an unauthorized location. By FBI Director James B. Comey‘s account, Clinton stored information on her private email server that any State employee– let alone the Department head– would have known immediately known was highly-classified top secret information. More to the point, despite Clinton’s frequent protestations to the contrary, he confirmed that some of those emails were indeed marked classified at the time.

Comey didn’t even particularly go out of his way to hide Clinton’s guilt, beginning by summarizing the statute in question…

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way.

…only to later say this.

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. 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. None of these e-mails should have been on any kind of unclassified system…

Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.

The key words in that second bolded section by the way are “any reasonable person.” As any 1L student could tell you, the “reasonable person” standard is the exact test used by American judges and juries to determine whether or not someone is guilty of gross negligence. It’s not an exaggeration to say that Comey literally laid out the exact argument law enforcement would have made for prosecuting Clinton. I also predict the FBI press team will receive dozens of questions in the coming months asking why “extremely careless” and “grossly negligent” aren’t the exact same thing given that, you know, they’re the exact same thing.

When Comey finally came around to stating the reasoning behind the FBI’s decision not to recommend charges, his argument was based not on whether she committed a crime (again, because she did), but “the context of a person’s actions, and how similar situations have been handled in the past.”

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.

Translation: Hillary Clinton broke the law, but not badly enough for us to care.

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