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.