A Sampling of the Reaction to the FBI Decision Not to Charge HRC [Updated]
[guest post by JVW]
In the aftermath of the FBI’s decision not to prosecute Ol’ Scratch for her email shenanigans, here is a sampling of the non-Twitter writings from across the political spectrum regarding what it means and where we go from here:
Andy McCarthy at National Review
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the [handling of classified information] statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
Paul Mirengoff in Powerline
Comey’s explanation was odd and unpersuasive on its face. He began by reciting what the law requires for a felony or misdemeanor conviction in cases like this. He noted that gross negligence is the standard for a felony conviction. He then recited the facts as the FBI found them. These facts suggest gross negligence.
When it came time to merge these two strands and present his decision whether to prosecute, Comey made no reference to the legal standard he had articulated a few minutes earlier. Instead, he pulled a switcheroo, formulating a new legal standard based on the elements he says have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence exited stage left — replaced by intent to harm the U.S., disloyalty, etc.
Mark Kirkorian in National Review
Comey’s announcement today that Hillary beat the rap has hacked out another large chunk of the remaining legitimacy of our constitutional order. Sure, it’s outrageous that a person like her could get away with what she did, days after a secret meeting between her husband and Comey’s boss.
But for someone like her to be elected president isn’t outrageous – it’s a threat to the Republic. For all the tumult surrounding Watergate, the outcome actually strengthened our political order, because it demonstrated that even the president was not above the law. Today’s announcement was a reverse-Watergate, demonstrating that open contempt for the law is no bar to the White House.
Chris Clizza in The Washington Post
FBI Director James B. Comey dismantled large portions of Clinton’s long-told story about her private server and what she sent or received on it during a stirring 15-minute news conference, after which he took no questions. While Comey exonerated Clinton, legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion.
Most importantly, Comey said the FBI found 110 emails on Clinton’s server that were classified at the time they were sent or received. That stands in direct contradiction to Clinton’s repeated insistence she never sent or received any classified emails. And it even stands in contrast to her amended statement that she never knowingly sent or received any classified information.
Roger Simon in PJ Media
. . . James Comey may have hurt Hillary Clinton more than he helped her in his statement Tuesday concerning the Grand Email Controversy. He may have let her off the hook legally, but personally he has left the putative Democratic candidate scarred almost beyond recognition.
By getting out in front of the Justice Department, the FBI director, speaking publicly in an admittedly unusual fashion, was able to frame the case in a manner that Attorney General Loretta Lynch in all probability never would have.
Scott Shackford in Reason
[I]t’s extremely disconcerting to see the Department of Justice and some of the left decry attempts by conservative criminal justice reformers to increase requirements where consideration of mens rea [the concept where prosecutors must show that the accused knew what they were doing was prohibited] should apply to federal law. Their argument is that it makes it harder to prosecute people, particularly white-collar criminals, which is partly the point of mens rea. Some on the left and within the Justice Department want to be able to prosecute corporate actors for violating one of the thousands of federal regulations that they claim protects safety and the environment, and they want to be able to do so without having to prove that people knew that they were doing anything wrong.
The vast difference between how Clinton has been treated here and how us commoners are treated should be a wake-up call for any civil rights organization who resist the expansion of mens rea. It’s already being applied unfairly so that the powerful are protected.[. . .]
Obviously, this suggests the possibility that perhaps the FBI made the right call in Clinton’s case, which probably does not sit well with many people. It also ignores the possibility that the Justice Department simply didn’t want a fight against a powerful politician with unlimited resources to fight back during an election year and who may have control over their budget come January.[. . .]
But Clinton supporters will want us to take this decision at face value, so do that as an exercise. Then turn and ask these people if they believe a similar mens rea standard should apply to everybody—even those dastardly Koch brothers—accused of violating federal laws.
Clare Foran in The Altantic
[T]he investigation could undermine Clinton’s case that her judgment makes her better suited to be president. Comey explicitly said that though there was not “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.” The accusation of carelessness may undercut Clinton’s case that she, unlike Trump, is an experienced and steady hand, capable of keeping the nation safe. The charge also threatens to feed suspicions harbored by her opponents that the Democratic candidate doesn’t think the rules apply to her. That, in turn, could further erode public confidence in Clinton.
Glenn Greenwald in The Intercept
Secrecy is a virtual religion in Washington. Those who violate its dogma have been punished in the harshest and most excessive manner — at least when they possess little political power or influence. As has been widely noted, the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined. [. . .]
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. Those who leak for more ignoble and self-serving ends — such as enabling hagiography (Leon Panetta, David Petraeus) or ingratiating oneself to one’s mistress (Petraeus) — face career destruction, though they are usually spared if they are sufficiently Important-in-D.C. For low-level, powerless Nobodies-in-D.C., 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.
This extreme, unforgiving, unreasonable, excessive posture toward classified information came to an instant halt in Washington today — just in time to save Hillary Clinton’s presidential aspirations. [. . .]
Joan Walsh in The Nation
The term “Clinton rules” have, over time, come to have two meanings. The one familiar to Clinton supporters is this: Both the former president as well as the presumptive nominee have spent their adulthoods on the political firing line, attacked by two generations of right-wing operatives, and they have faced a media culture in which they are guilty until proven innocent. But that’s led to another perception of “Clinton rules”: whether out of entitlement, or disgust at the media’s double standards, the former first couple sometimes acts as though rules of propriety don’t apply to them. From Clinton’s ill-advised Goldman Sachs speeches to her use of a private server in the first place, she seems to be unable to perceive the (at minimum) appearance of sleaze such decisions will communicate. If she has advisers who try to help her see such conflicts, it often seems that she doesn’t listen to them.
Does anything you read above ring especially true to you? If you find particular pieces that you think make salient points, feel free to place them in the comments.
UPDATE: Dana points us to the AP fact-checking story and highlights the following quote:
Key assertions by Hillary Clinton in defense of her email practices have collapsed under FBI scrutiny.
The agency’s yearlong investigation found that she did not, as she claimed, turn over all her work-related messages for release. It found that her private email server did carry classified emails, also contrary to her past statements. And it made clear that Clinton used many devices to send and receive email despite her statements that she set up her email system so that she only needed to carry one.
UPDATE BY PATTERICO: An instant classic: