Protesting in Baton Rouge with Black Lives Matter

Most of the time, on this blog, I write my own opinions about other people’s stories. Today I have a story of my own to share. It is very long, but it is leavened with pictures. All experiences, stories, and impressions herein are my own; I do not claim to speak for anyone I haven’t actually quoted, including other members of the protests. All pictures in this post were taken by me, and are licensed for reuse with attribution under a Creative Commons license, as long as you contact me first. 

The Triple-S Mart

On Sunday, July 10^th, my girlfriend (Rebecca) and I drove to Baton Rouge to take part in the protests over Alton Sterling’s death at the hands of police. We first went to the Triple-S Mart where Sterling died, and found maybe seventy people camped out around it, holding signs and sitting against fences and under portable canopies. Nearly all were black. One woman offered us water and soda; she was behind a table with markers and sheets of paper for signs. A little boy behind the table wore a Star Wars shirt with John Boyega’s character on it, Finn, the first black lead of the series.

I saw one cop there and one cameraman. "Cops don't come down here," said a man when I asked if there had been more. "The last two that were down here were on the night [Sterling] died." Rebecca said it seemed more like a wake, a vigil, than an active protest. We, white out-of-towners with backpacks on our backs, felt and looked like lost children. We asked a woman named Joanne if there was a march or anything else in the city where we could be more useful, and she said yes, that a march had begun at 5 PM at police headquarters. She gave us directions downtown. It was now nearly 6.

The highway exits to downtown were blocked by police. We found an alternate route through back roads. A few blocks from police headquarters, we saw flashing blue lights and what looked like hundreds of people in the street. We decided to stop there. A police officer directed us onto a side street, where we parked, and I thanked him for minding traffic. He asked who we were with, and we said, no one. He said that the locals had mostly gone home, that it was all out-of-towners down there. He said that if he was us, he wouldn’t go down there. We thanked him, took each other by the hand, and walked towards the crowd.

The Protest

Based on later conversations with protesters and cops, as well as articles in the Baton Rouge Advocate and New Orleans Times-Picayune, I learned that three high school students had organized a peaceful march to the state capitol building earlier that afternoon. The group we found, which was largely out-of-towners, had split off from the main body and marched towards an I-10 on-ramp, attempting to block the interstate. Many protesters were arrested on Saturday for attempting to do the same thing. This time, the police were prepared, and physically blocked the street leading to the on-ramp. (Apparently the original march had a permit, but this splinter group had broken off the permitted route.)

Police blocking the route onto the I-10 freeway. The blue-uniformed officers are City of Baton
 Rouge police, while the green-uniformed officers are state troopers. Note the gas masks.

When we arrived, the street still smelled of tear gas, and an armored police Humvee was using its LRAD system to make a loud, painful siren sound that was intended to disperse the crowd. The officers were wearing gas masks. Overhead, a helicopter and a small light aircraft circled the scene. I saw a similar light aircraft over Friday’s protest in New Orleans, and assume that both were spy planes operated by law enforcement. (Side note: this is not a conspiracy theory, but an actual thing that has been documented by the AP, the Washington Post, and Buzzfeed.)

Initially, we got as close as the median across from the officers. A woman with a backpack and a “Medic” sign offered me a vial of lavender oil to calm my nerves. Over a megaphone, an officer commanded the crowd to disperse within thirty seconds, and to stop illegally blocking the road. No one moved. We were there for only a few minutes before the officers moved out into the street, and the protesters turned and ran. We ran with them, hand in hand, to the safety of the opposite sidewalk.

On the streetcorner opposite the police, a woman offered to let protesters stand on her property, so everyone who could fit crowded into her yard. Those who couldn't fit spilled out onto the sidewalk or the adjoining road, French Street. 

Across East Boulevard

The police after clearing the protesters away. 

The two opposing sides, as seen from the median.

The crowd was large, maybe five hundred people, mostly black but with a sizable sprinkling of white protesters. Signs read “Justice for Alton Sterling” and “We Are All One” and “I Can’t Keep Calm, I Have a Black Son”. One sign said “Blue Lives Murder”. We chanted “BLACK LIVES MATTER!”, “No justice! NO PEACE!”, “No racist! POLICE!”, and occasionally “Put down your guns! Put down your guns!” Observers from the Legal Aid Society mingled with the crowd, handing out little paper slips with a number to call if we were arrested. Another man walked down the line of protesters, warning us to stay off the road so as not to give them an excuse to come after us. I couldn’t stop thinking about how crazy it was that the concrete sidewalk was safe, but the street two steps away was unlawful territory.

Protesters eyeing the cops: worried, defiant, assessing.

Shortly after we arrived, the officers all took off their gas masks, and the LRAD siren was turned off, much to everyone’s relief. We were ordered out of the road, then off the sidewalk. A woman in the yard began screaming, almost unintelligibly, about how it was our sidewalk and public property; a group of people, including us, marched a few blocks away and then back towards the yard to demonstrate that it was indeed our sidewalk. The police didn’t move. The loudspeaker occasionally called for us to disperse, but no police moved for a long time. Things seemed to be fairly calm on both sides. Once or twice, someone shouted “Fuck the police!”, but no one joined in and he was quickly hushed.

The still-anonymous-to-me star.

There were a few moments of humor. At one point, someone famous showed up with his entourage and paraded down the street, flanked by cameramen. He was there for all of five minutes. I asked a pair of black women next to me who he was; they told me the name, it whooshed over my head, and they said “an R&B singer”, the way I would say "a Canadian rock band" if someone had asked who Rush was. I suddenly felt very white.

Rebecca told me later that she had been afraid the entire time we were there, start to finish. I stopped being afraid after the sidewalk mini-march—I don’t know why, the fear just went away on its own—but I was also pretty uneasy about what was going to happen next. Clearly, the police were not going to disband on their own, but neither were we. This body of protesters had no real leader, no place to go other than the interstate; we were just standing around, chanting and waiting for something to happen. I began to wonder how this was going to end.



Talking to the Police

After perhaps an hour of standing in and around the yard, talking with the other protesters around us and shooting pictures of the small army across the street, I decided that I could not leave in good conscience without at least trying to talk to some of the cops across the road. (When I put this to Rebecca, she asked “Why?” and I said, “Why not?”) She opted to stay on the other side, so I walked up to the crosswalk, crossed the street, and approached a group of non-riot-geared officers I’d seen lounging around a car. Two were black; the rest were white. All were men.

I walked up to them, greeted them, and asked if it was okay for me to spend a little time with them. They, as you might imagine, were nonplussed; one asked if I was a journalist, and I said no. Someone else said, why, then? I said, I want to hear what you guys think of all this. Sure, they said. One pulled out a pair of black flex-cuffs, and for a split second I thought they were going to cuff me, but he instead asked if I would like to help them out (?!). I demurred, and one of the other officers said “He’s not that much on our side.” Flex-Cuffs then offered me his gas mask. I said no thanks, and asked if I could take some pictures of them. Flex-Cuffs hesitated, chewed it over, then said “Well, I guess I can’t really tell you ‘no’”.

"Let's show off our diversity," said the black officer at left before I took this photo.

Flex-Cuffs is in the center. He was sort of half-joking about putting on his gas

mask for the pictures. 

After a little more talk, I thanked the officers and moved down closer to the main body of police officers. There was a sizable swarm of reporters and cameramen over there, most of them with cameras pointed at the protesters. By this time, the crowd had overflowed out of the yard and into the street.

More Talking with Police

I chatted up a more senior officer who was standing nearby. He was willing to talk, if slightly cool towards me, which seemed understandable. I told him I wasn’t a reporter, just a protester, but I was interested in what he had to say. I asked if he thought the protesters had a point. He differentiated between the group across the road and the larger march on the Capitol, which was more local-heavy; he pointed out that the police had been working with black community leaders, elected and not, specifically mentioning ministers. He said that this group, of mostly out-of-towners, was more anti-police, and that they were in his opinion hurting their cause.

I should point out here that being from a white suburb in Wisconsin, my interactions with police have been limited and almost always benign. People who know me know that I also tend to defer to established authority. So whether he was right or wrong, his words carried some weight with me.

Note: this is not that officer. 

We talked about police shootings, and I mentioned the counts kept by the Guardian and the Washington Post. He asked me if I thought those shootings were all unjustified, and I said, no. He invited me to look at it statistically. He asked about Michael Brown, said that he had just committed a crime, that he had assaulted an officer. He pointed out that the Justice Department had investigated the case, and that they saw fit not to prosecute Darren Wilson.

What about Alton Sterling, I asked. Was that justified? Him being tackled, held down, the officer firing from a foot away? We’ll wait on the Justice Department to say yes or no, he said. If they decide that it’s worthy of charges, they will file charges, make no mistake. I asked him to consider that those people across the street don’t have faith in the ability of the system to fix itself, to hold itself accountable; they don’t see law enforcement the way you and I do, but as an actively bad presence in their lives that has hurt them. He shook his head. That’s a small minority of people, he said. There are many more people out there who do have faith in the system.

I would have asked him more questions, but he got pulled into an impromptu press briefing, which I sat in on. Across the street, a man with a megaphone had organized the crowd; it seemed larger than before, boiling off the sidewalk and onto the pavement. Half of it was yelling “ALTON!” and the other, “STERLING!” 

Megaphone Guy can be seen at center left.

The Riot Police

I was waiting on the officer, taking more pictures, when I saw a line of riot police, shields up, trotting into place and sealing off the north end of the street. Thoughts collided in my head: document this and find Rebecca NOW. This only lasted a second or two but seemed much longer. As I pulled out my phone to call her, I heard someone screaming my name. I looked up and saw Rebecca, urgent, hand extended, halfway across the street. I put my head down and sprinted across to her and rejoined the protesters on the other side.

I don't know if this man was a protester or photographer; he was over with the
photographers when I was, but maybe he was doing the same thing I was. Either
way, I think he just saw the line of riot police on the other side of the street.

The police had formed a wall at either end of the street and begun to advance. The contingent opposite the house now moved forward towards us. Everything got a little confused. We tried to link arms with several protesters, but they stretched across the street, and someone convinced them to clear out of the road. The police crossed the boulevard and our side of the street. Rebecca and I fled into an adjacent parking lot. They were on the edge of the yard.

I don't have very many clear pictures of the "retreat", because, you know, chaos.

Looking back, I saw the police entering the yard. Some people stood firm, and advancing officers grabbed them and cuffed them. Most of the crowd fled the yard, bursting out through the back gate and out into the road. The police formed another wall and pursued us down the street, walking slowly and stopping at cross streets. It was an odd kind of stop-and-go chase; no one else got close enough to get arrested, and they didn’t seem particularly interested in chasing people down. They just kept pushing us back and back and back, a blue line of riot shields and helmets backed by armored vehicles.

The protesters gave ground, step by step, chanting, waving banners, hands in the air. We were a disorganized mass, no longer a line, flowing piecemeal down French Street. Several times, I shouted “We are not your enemies!”, which at least got a look from some of the nearer officers. We were getting farther and farther from the car, and after the third or fourth cross street, we decided it was time to go. (This was excellent timing; we learned later that night that sometime on that march to the west, people had started flinging chunks of concrete at the oncoming police. I do not support that, and neither does she.) 

We ducked into a side street and watched the police pass with a few other stragglers. After they were gone, Rebecca put her head on my shoulder and cried.

We walked back to the car and put our things inside. I asked if Rebecca was OK to drive, and she said she was. As we turned onto East and headed back the way we’d come, I saw a police officer hand a bottle of water to a protester.

The Gator

As we drove back to Baton Rouge, me looking through the pictures I’d taken, we talked about what we’d just done. Both of us agreed that it was right for us to be out there, that it was right for us to lend our support and lend our voices to the cause. I wasn’t sure, though, how the disorganized protest we’d been to—the opposition with the police—connected to the kind of real change we were seeking. Yes, someone had to make noise before anything would change, but was this the kind of thing that would convince police and city leaders that they had a real problem, that they needed to talk to community leaders? Especially with a group that was full of out-of-towners? Yes, said Rebecca, but people getting arrested for protesting injustice is the kind of thing that draws attention. It needs to happen before there’s enough attention on the subject that leaders will feel pressured to make changes. But was this the way it had to be?

We had fallen temporarily silent—her driving, me looking at my camera—when something huge and heavy and dark appeared in the road. Rebecca estimated that it was about a foot and a half high, stretching across the entire lane; she thought at first that it was a discarded bumper or a shred of rubber from a truck. We ran right over it. There was a tremendous crash; the whole car seemed to jump in the air. Rebecca leaned on the horn, flicked on the warning lights, and guided us to the side of the road. Another car pulled in behind us, but drove off after a minute or two.

The odds are that it was an alligator. That’s what the officers—two St. James Parish sheriff’s officers—who responded to the 911 call told us. It was long after dark, and we couldn’t very well look for a body, but there was nothing on the roadside; one of the officers said it’s possible the ‘gator even survived and crawled off the road. “They can move real fast if they need to,” he said. (Two separate people told me that this was how horror movies start; stupid kids driving at night run over an alligator, which survives and swears eternal vengeance on them.)

Whatever it was, the car was shot; the radiator was busted, the front bumper was wrapped around a front wheel, and I’m not a mechanic, but the axle was doing things an axle shouldn’t do. Rebecca called her insurance company, and they told her that they couldn’t get a tow truck out there, so the officer gave us a list of wrecking companies in the Baton Rouge area. After some time on the phone, during which the officers left and one of them came back, the younger of the two officers arranged for a wrecker to pick up the car and keep it in Baton Rouge overnight. Rebecca called a friend and asked her to pick us up. The officer suggested that we wait at a truck stop instead of on the side of the road. And in the supreme irony of the night, after spending the evening shouting at police and trying not to get arrested, we rode to the truck stop in the back seat of his car.

The helpful officer, who was white, couldn’t have been much older than my twenty-six years. He was clean-shaven, with dark eyes, and wore a blue-and-black ribbon across his sheriff’s star that I later learned was a mourning badge, most likely for the Dallas shootings. He had a copy of St. Michael’s Prayer for Police Officers tucked in a little crevice in the ceiling of his car. He lent Rebecca his phone to copy down the wrecker’s information, and a text message notification flashed up on top of the screen while she was holding it. It was from “My Love”.

Last Thoughts

When we got to the protest, with the siren wailing and the faceless masked policemen standing by with rifles and the scent of tear gas in the air, with the chopper and the spy-plane overhead, I was afraid. But the longer it went on, as the scent faded and the plane flew away and the siren fell silent and the police removed their masks, the less afraid I became. The police are not our enemies, and we are not theirs. The sheriff’s officer was helpful and kind, personally securing us a wrecking truck when the police number he gave us didn’t know what we were talking about. The officer I chatted up answered my questions, and if he didn't hear me out as much as I’d have liked, that was only to be expected under the circumstances. Even Flex-Cuffs was sort of friendly, in his own way.

I found it hard even to be angry at the officers who cleared the street; admittedly under the eye of the media, they appeared to me to be professional and just doing their job. And although I’ve seen some social media comments castigating them for “attacking” a “peaceful protest”, one wonders what they were supposed to do? This group was attempting to block the interstate before the police (and we) got there, and if the police left it might have tried again, which would have been a recipe for disaster with night coming on. The police couldn’t leave, and they couldn’t just stand there indefinitely and wait for the protesters to disperse on their own—a protest that was already well away from its permitted route.

My opinion and my views and my thoughts are a part of this story, not all of it. My history with the police has been generally good; I have not been abused, stopped without cause, frisked, beaten, jailed, or subjected to any of the countless indignities and injustices that Americans of color are subjected to every day. Criminal justice reform and racism in policing seem so frustratingly intractable to me, full of stories of people getting ground up and spat out by unjust systems that fail black people and poor people at appalling rates. For the Baton Rouge police department, or any police department, to fix the kind of racist, destructive policing that killed Alton Sterling, good people on both sides have to work together to find some kind of solution. The Baton Rouge police have to admit that the protesters have a point, that Sterling’s death was not justified in any sane way, and work with the community to figure out how to better police the city in a way that does not harm black and brown citizens. I hope this weekend of protests helped move the city in that direction. I hope that, sooner or later, the other side starts to listen.


This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/. 

Why Wasn't Clinton Charged?

The Charges

There's a really damning article by Andrew McCarthy in National Review that reads something like this:

Title 18, U.S. Code, Section 793 (f) says that it's a criminal act to negligently remove classified information, or allow it to be removed, from the place where it's supposed to be stored. Hillary Clinton acted with gross negligence and moved information from where it should've been stored. In explaining his decision not to charge Clinton, FBI Director James Comey talked about how Clinton had no intent to cause harm, which isn't the purpose of subsection (f); it's about negligence, not intent. Therefore, the FBI essentially reinterpreted the law in order to avoid charging Clinton.

The plain language of the statute seems to bear out McCarthy's point. Here it is:

(f) Whoever, being entrusted with or having lawful possession or control of any [document] 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, or (2) [knowing that that happened and not telling] shall be fined under this title or imprisoned not more than ten years, or both.

Glenn Greenwald goes even farther on The Intercept. It's been well-documented that the Obama administration has punished more leakers of classified information under the Espionage Act than any other President. "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", he writes. "For low-level, powerless Nobodies-in-DC, 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".

But Hillary got off. The Obama administration, like it did for David Petraeus, made an exception for the Democratic Presidential candidate. Because she's too big for the law.

Greenwald doesn't think that Clinton's misconduct warranted criminal prosecution, if you look at her case in a vacuum. But, he continues,

"This case does not exist in isolation. It exists in a political climate where secrecy is regarded as the highest end, where people have their lives destroyed for the most trivial – or, worse, the most well-intentioned – violations of secrecy laws, even in the absence of any evidence of harm or malignant intent... Had someone who was obscure and unimportant and powerless done what Hillary Clinton did – recklessly and secretly install a shoddy home server and worked with Top Secret information on it, then outright lied to the public about it when they were caught – they would have been criminally charged long ago, with little fuss or objection."

Wow.

The Defense

On the other hand, we have this statement from Comey:

"Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case."

No reasonable prosecutor would bring such a case?

How can he say that? When you consider what McCarthy wrote and the plain language of the statute, even the most ardent Clinton defender would have to concede that there was enough gross negligence to at least charge her with a crime.

And when you consider what Greenwald writes about Clinton's rank and privilege shielding her from harm, even the most passionate Clintonian would have to concede that it smells rotten.

Right?

Well, let's dig into it.

Greenwald's Precedents

Rhetorically, Greenwald makes an excellent point. People who leaked classified information to the public, for the benefit of the public, have been prosecuted as criminals. But the facts of those cases aren't similar to what Clinton did. She didn't deliberately leak anything. Instead, she was careless about the security of classified information sent to and from her and her aides. So the list of whistleblowers--Ellsberg, Manning, Snowden--doesn't hold up as a comparison.

Greenwald also says this-- "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" -- and provides links to two examples: Bryan Nishimura, who took classified information home from Afghanistan in 2007-8, and Kristian Saucier, who took digital photos of the engine room in the nuclear submarine on which he worked. Saucier has pled guilty to a criminal charge of mishandling classified information, and is currently facing sentencing. Nishimura was sentenced in 2015 to two years' probation and a $7,500 fine.

So the little people got stomped while the big fish walks free, right?

No. These examples are more complicated than that. Nishimura downloaded classified materials onto his personal devices in Afghanistan, took them home to America, and kept them for four to five years. By any reasonable definition of the word, he stole them. (Greenwald's "merely to, say, work from home" is deceptively misleading here.) When the government caught on (in 2012), he destroyed a large quantity of information, according to the FBI. Meanwhile, Saucier tried to take photos of a classified engine room, then "destroyed a laptop, camera, and memory card after learning he was under investigation".

His story contains this intriguing quote from a sailor who served with him:

“Two guys in our boat were caught taking photos in the engine room on the nuclear side of things. Basically, all that happened to them was they … lost a rank,” Pitcher said. “I’ve seen quite a few cases like this and never seen any handled like Kris’.” 

The article says that according to Pitcher, these were "not uncommon" infractions which were "almost always dealt with through what the military calls "nonjudicial punishment"", i.e. a demotion or loss of pay. It also says that Saucier's denying that he took the pictures, smashing his computer equipment, and owning an unregistered handgun that he allegedly cleaned with bleach after the FBI questioned him, may have contributed to the FBI's decision to charge him.

But these people took classified information, then tried to conceal it. There are gaps where it looks like Clinton's lawyers deleted emails that they deemed private (which was allowed) that were actually work-related (not allowed), because they may not have actually read all of them (the FBI says they didn't, and of course, they deny this). However you feel about that, it's a long way from deleted emails (many of which the FBI reconstructed) to smashing your computers and bleaching your unregistered gun. And it's a long way from setting up a private email server to stealing information and keeping it for yourself. Those cases don't really apply to Clinton either.

Apples-to-Apples Precedents

Okay, but what about people who were just negligent with classified information? Let's remove the excess variables in Nishimura's and Saucier's cases. Let's focus on people who did the same thing Clinton apparently did: be negligent with classified files. Did they face criminal charges? If they did, that would be damning proof that Clinton was being treated differently because of her political status.

A recent column in Politico Magazine seems to say no. A high-ranking State Department official posed for a picture that revealed classified information, which was then placed on the cover of a magazine and distributed worldwide (as related by the photographer). A paper with classified information was partially visible in the picture. Although the text was illegible in the photo, the government feared that foreign intelligence agencies might be able to enhance the photo and read the text. Was that official punished under Section 793?

Well, he received an official letter of reprimand. That was all.

But that's only one example, and it was the No. 4 guy in the State Department. It's reasonable to assume that he also benefited from his political position. It's good to know, but that precedent doesn't let Hillary off the hook.

That's why this Politico article is so valuable. It says that "between 2011 and 2015, federal prosecutors disposed of 30 referrals from investigators in cases where the main proposed charge was misdemeanor mishandling of classified information". Eighty percent of the time, that is, in 24 out of 30 cases, federal prosecutors declined to bring charges. In the other six cases, the defendant pled guilty, and the case never went to trial.

Here's a long quote:

"The relatively few cases that drew prosecution almost always involved a deliberate intent to violate classification rules as well as some add-on element: An FBI agent who took home highly sensitive agency records while having an affair with a Chinese agent; a Boeing engineer who brought home 2000 classified documents and whose travel to Israel raised suspicions; a National Security Agency official who removed boxes of classified documents and also lied on a job application form... 

"Former prosecutors, investigators and defense attorneys generally agree that prosecution for classified information breaches is the exception rather than the rule, with criminal charges being reserved for cases the government views as the most egregious or flagrant. 

“They always involve some ‘plus’ factor. Sometimes that ‘plus’ factor may reach its way into the public record, but more likely it won’t,” one former federal prosecutor said.

McCarthy is right that under the plain language of the statute, Hillary could have been at least charged with a crime. But according to Politico, because the statutes are written so broadly (because of course they are--it's kind of bad when someone loopholes their way out of getting convicted of treason), prosecutors have a lot of discretion about when to bring charges and when not to. And at least in the past four years, they have chosen not to bring charges in cases where the person merely screwed up and there was no intent to do harm.

I'd also like to add this rather depressing information from way down in the piece:

It’s also unclear whether the information was less secure on Clinton’s home server than on the State Department’s unclassified email system used to send most of the now-classified messages to her in the first place. State’s system was an obvious target and has been repeatedly broken into by the Russian government, U.S. officials have said.

Which isn't, like, good, but bears thinking about when we're considering how much actual danger Clinton put the country in by keeping her emails on a private server.

The Politico article goes on to relate several cases where high-level government officials were not prosecuted or agreed to plea deals for mishandling classified information, while lower-level officials and government contractors were charged with felonies. However, it adds:

But some of those felony charges for grossly negligent handling or removal of classified information appear to have been pursued in cases where the government strongly suspected espionage or deliberate leaking of classified information had occurred, but decided a full-blown prosecution on those grounds wasn’t warranted. 

In such cases, “a criminal prosecution for mishandling classified would be used as a means to another end,” Leonard said. “The intent is not necessarily to punish the mishandling but is… like the proverbial example of going after Al Capone for income tax evasion.”

What Comey Said

These precedents appear to be why Comey decided what he did. In his press conference yesterday, he said the following (bolding mine):

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider 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. 

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now. 

As a result, although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

So to the best that I can determine with publicly available information, without doing my own investigation (because I'm a damn blogger and I have a full-time other job), Greenwald is wrong. In the specific cases examined by Politico, relating to negligence towards classified information, lower-ranked people did not get off more easily than higher-ranked people. The cases where people were merely negligent with classified information got off, while cases with worse malfeasance were prosecuted.

Which also explains McCarthy's objection. The plain language of Section 793(f) simply hasn't been enforced. Enforcing it in Clinton's case, and not enforcing it in other cases where a similar level of negligence occurred without intentional misconduct, would be the opposite of elitism; it would be treating her more harshly than similar cases have warranted, not less.

...Which is Not to Say that This Whole Thing Wasn't So, So Stupid

I'm voting for Clinton in November, and I generally have a pretty high opinion of her, so factor that information into how credible you find this post.

I think, based on the evidence available to me, that the FBI was correct in not bringing criminal charges against Clinton. But even though what she did probably wasn't criminal, it was stupid. If there's one thing that defines the Clintons, it's their ability to hurt themselves (closely followed by their ability to wiggle out of anything). Why on Earth did Bill Clinton barge into Attorney General Loretta Lynch's plane last week? Even if they were talking about the weather and the Washington Nationals, did he not understand how terrible that would look?

Why are there gaps in the emails? Why didn't she immediately turn over all her emails, personal or not, and avoid what had to look like her lawyers editing out damaging information? Why did she initially tell the world that there was no classified material (there was), that no emails were marked classified (some were) and that she took information security seriously (she apparently didn't)?

For that matter, why does--gaah. Just read the first paragraph of this AP story.

An Associated Press review of the official calendar Hillary Clinton kept as secretary of state identified at least 75 meetings with longtime political donors, Clinton Foundation contributors and corporate and other outside interests that were not recorded or omitted the names of those she met.

There are reasonable explanations for the omissions--there usually are--but it looks terrible, and it's so completely self-inflicted. This entire email mess is not a problem that the world threw at Clinton; it's a problem she created and then repeatedly exacerbated by not being open or transparent until she was forced to be. I've heard all the arguments about how Clinton is jaded from 30 years of more or less constant media scrutiny and scandal, how her instinct is to close ranks and clam up when something bad happens, and that there were in some cases real reasons why unclassified emails had to be sent. I'm also sympathetic to the idea that overclassification is a real problem, and it's frequently asinine and at odds with common sense.

But this scandal did not have to happen. Clinton made some terrible decisions about how to respond to it. By the best information I have, she should not have been charged as a criminal, but--I mean, read that sentence again. When it applies to a Presidential candidate, that should not be a question we have to ask. In a perfect world, the Democratic party would have an electable nominee with Clinton's experience but without her (and her husband's) knack for creating and maintaining a fog of taint and scandal that surrounds her at all times. But this isn't that world, and Clinton--with all her flaws and all her bad judgment--is the Democratic nominee.

Let's hope she's good enough.