The Corner

U.S.

Yes, Hillary Should Have Been Prosecuted

Hillary Clinton speaks to supporters following the 2016 presidential election in Manhattan, November 9, 2016. (Brian Snyder/Reuters)

I know this is ancient history, but — I’m sorry — I just can’t let it go. When historians write the definitive, sordid histories of the 2016 election, the FBI, Hillary, emails, Russia, and Trump, there has to be a collection of chapters making the case that Hillary should have faced a jury of her peers.

The IG report on the Hillary email investigation contains the most thoughtful and thorough explanation of the FBI’s decision to recommend against prosecuting Hillary. At the risk of oversimplifying a long and complex discussion, the IG time and again noted that (among other things) the FBI focused on the apparent lack of intent to violate the law and the lack of a clear precedent for initiating a prosecution under similar facts. It also describes how the FBI wrestled with the definition of “gross negligence” — concluding that the term encompassed conduct “so gross as to almost suggest deliberate intention” or “something that falls just short of being willful.”

After reading the analysis, I just flat-out don’t buy that Hillary’s conduct — and her senior team’s conduct — didn’t meet that standard. The key reason for my skepticism is the nature of the classified information sent and received. Remember, as Comey outlined in his infamous July 5, 2016 statement, Hillary sent and received information that was classified at extraordinarily high levels:

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.

If you’ve ever handled classified information, you understand that there are often judgment calls at the margins. When I was in Iraq, I often made the first call about classification. In other words, I determined whether to send information up the chain via the unclassified system (NIPRNet) or the classified system (SIPRNet). Entire categories of information were deemed classified by default. Other categories were commonly unclassified. But sometimes, I had to make a choice. And sometimes, the choice wasn’t clear.

The lack of clarity, however, wasn’t between unclassified and Top Secret. Much less between unclassified and Top Secret/Special Access Program (TS/SAP). There might be tough calls between unclassified and confidential — or maybe between unclassified and secret. But the gap between unclassified and Top Secret, much less SAP, was and is vast, yawning, and obvious. In fact, the IG noted that “some witnesses expressed concern or surprise when they saw some of the classified content in unclassified emails.”

I bet they did.

The IG indicated that State Department security procedures were lax, and that if the DOJ were to prosecute Hillary, it would have to prosecute many other employees. Well, if the employees are sharing TS/SAP information on unclassified systems, then let the prosecutions commence. But I’m dubious that it’s common to share information that highly classified. In fact, when the IG outlined allegedly “similar” cases where the DOJ declined to prosecute, they weren’t similar at all.

Moreover, it’s important to remember that one can’t generally simply copy/paste or forward emails from classified to unclassified systems. (That’s likely why the emails on her homebrew system didn’t contain classified headers.) A person has take information from one source and summarize it or painstakingly type it out on another platform. All of that takes effort. All of it requires intention. And it’s one reason why I have confidence that if Hillary had been Captain Clinton, United States Army, instead of Secretary Clinton, Democratic nominee for president, then the consequences would have been very different indeed.

In reading the report, I’m reminded of Homer Simpson’s famous declaration, that alcohol is the “cause of, and solution to, all of life’s problems.” For Hillary, the FBI turned out to be first the solution to, then the cause of, the decline of her campaign. By wrongly refusing to recommend prosecution, it made her candidacy possible. By then failing to follow proper procedures in its two later public announcements, it helped end her presidential dream.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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