Law & Justice: July 2016 Archives
The decision not to charge Hillary Clinton for her "extremely careless" handling of classified information is opening a new line of defense for others who stand accused of similar misdeeds.
Mark Zaid, a defense attorney for national security whistleblowers and people accused of mishandling secrets, says he plans to ask for "the Clinton deal" in the future.And Zaid says he probably can get it.
In 2015, shortly after former CIA Director David Petraeus received a plea deal featuring probation and a fine for sharing highly classified information with his mistress Paula Broadwell, Zaid says he called the Justice Department on behalf of a client accused of taking classified records home.
"We absolutely got on the phone to the prosecutor and said, 'We want the Petraeus sentence. We want the commensurate, parallel sentence.' And we got it!" he says, winning a $5,000 fine and a short probation term instead of possible prison for a now-retired intelligence agency employee.
It's hard to see how this decision makes America safer, and it certainly undermines the rule of law.
Rep. Darrell Issa, the California Republican who is the former chairman of the House Oversight Committee, cited the case of Navy Petty Officer 1st Class Kristian Saucier, who pleaded guilty last week to possession and retention of national security information for taking cellphone photos inside the classified engine room of a nuclear submarine where he worked as a mechanic."That person's been prosecuted and he will get five or six years and a dishonorable discharge," Issa told CNN. "There is a double standard."
FBI Director James Comey recommends no charges for Hillary Clinton. She exposed highly classified data to "hostile actors", but there's no "direct evidence" that her servers were hacked -- and none would be expected. Thousands of work-related emails were recovered that weren't turned over in 2014. Hillary was "extremely careless" with highly classified information, but the evidence doesn't show that she was intentionally trying to damage the United States. She broke the law, but "no reasonable prosecutor" would bring a case against her.
Comey seems like an honorable man, and this conclusion seems reasonable to me, even though Comey is clear that there was plenty of evidence to support criminal charges. I don't understand the reasoning for not recommending charges, but it seems that Comey suggests that administrative penalties would be more appropriate. (Of course, no such administrative penalties are now possible.)
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the 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.
Despite the lack of criminal charges, I hope that the American public imposes political consequences on Hillary for her reckless behavior. From a political perspective, Comey's statement was probably the best possible outcome for Trump. Video of the FBI director calling Hillary "extremely careless" is powerful stuff.
My opinion is that the people who are lamenting this result are missing the subtlety of Comey's statement and decision: Hillary has been convicted as dishonorable, dishonest, and careless without the need for a trial. No endless motions, no delays, no jury tampering, no arcane court rules, no backroom deals, no plea bargain. If America wants to elect an incompetent, lying crook, then no indictment will prevent it.
Update:
Reason does a super-cut, interposing Comey and Clinton.
