The people, not the prosecutors, should decide whether Hillary broke the law.
That is the real takeaway from FBI director James Comey’s decision not to refer Hillary Clinton and her aides to the Justice Department for prosecution. According to Comey, Clinton was “extremely careless” by diverting classified information through a home-brewed computer network that deliberately avoided the official system of the State Department — even though the FBI found that Clinton had sent 110 e-mails in 52 e-mail chains contained classified information, that she had not turned over all relevant e-mails, that she had used her private e-mail system while visiting our adversaries, and that her system had probably been hacked by them.
But Comey found that no reasonable prosecutor would bring charges because the FBI could find no “clearly intentional or willful mishandling of classified information or vast quantities of information exposed in such a way to support an inference of intentional misconduct or indications of disloyalty to the United States or an obstruction of justice.” This makes no sense because the law at issue, Section 793(f) of Title 18 of the U.S. Code, does not require such a high level of intent, but only “gross negligence.” It also makes no sense of the facts, as they are known: Why, after all, create a private e-mail system other than to evade the secure, classified system? We agree with Andy McCarthy’s excellent dissection of the interpretation of Section 793(f) and why the case against Hillary is strong.
Comey’s decision also makes no sense as a matter of past prosecutorial practice. John Deutch, director of the CIA under Bill Clinton, was prosecuted for keeping classified material on unclassified laptops. Clinton national-security adviser Sandy Berger was prosecuted for removing classified documents from the National Archives. And of course David Petraeus was prosecuted for sharing classified information with his girlfriend and biographer. And we should not forget the witch hunt for the leaker of Valerie Plame’s covert identity by independent counsel Pat Fitzgerald, which Comey ultimately oversaw. Comey allowed Fitzgerald to bring charges against Scooter Libby, even though Fitzgerald knew that the leaker was another official.
Hence our takeaway: All of them should have gotten out of their prosecutions by running for president, because that is the only significant difference between Clinton’s case and theirs. In fact, the Clinton case exposed far more of U.S. operations to far more dangerous readers, since our global rivals, who have shown no reluctance to hack U.S. government systems, would have easily broken into her system and read the communications of our top diplomatic officials.
We cannot help but think that Comey made his decision to keep the FBI out of politics. An indictment at this time could have swung the November election decisively against Clinton. Prosecutors, of course, should not let politics dictate. But they inevitably do, and no federal prosecutor wants to be responsible for knocking one of the candidates of the major political parties out of the running this close to the election.
#related#There should be more sympathy for this decision, though not because of Comey’s decision on the legal merits (which we believe is mistaken). As Justice Scalia did in his famous dissent in Morrison v. Olson criticizing the constitutionality of the independent-counsel law, conservatives should look first to political rather than criminal avenues to solve a controversy like this. The American people can decide for itself whether the facts show that Clinton violated the law, and they can impose a sanction of rejecting her at the ballot box this November.
For the political system to work as judge, jury, and executioner, it must have access to the full, unvarnished FBI file on the investigation. If Comey wants to take the FBI out of politics, he should let politics take over the job of the FBI in this case. Without the full file of interviews, e-mails, and evidence, the American people won’t be able to come to a considered judgment on Clinton’s culpability this November. If Hillary trusted the American people, she would ask that her file be made public (though her creation of the e-mail system seems to show she trusts the Russian and Chinese governments more than Americans to read her e-mails). We would not be surprised if Donald Trump will be demanding that the FBI release its file too. And he would be right.
— John Yoo is the Heller Professor of Law at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. Robert Delahunty is the Lejeune Professor of Law at St. Thomas School of Law. They both served in the Justice Department during the George W. Bush administration.