Hillary Clinton Will Be Tried For Her Conduct

There is one clear, though obscured and denied, reality stemming from FBI Director Jim Comey’s extremely unusual announcement that “no reasonable” prosecutor would “bring such a case”: The only reason anyone cares about this matter is the presidential election.

But for Hillary Clinton running for president, no one would give a hoot about her emails. And so, those who do not support her want to see her indicted, or at least charged, in order to influence the outcome of the election.

There are some other, slightly less clear, aspects to Comey’s announcement.

  • That he used the phrase “extremely careless” because it is not a legal term of art, a mens rea as set forth in a federal offense (as “gross negligence” would have been).
  • That anyone other than Hillary Clinton might very well have been indicted, or at least charged, for engaging in similar conduct.

So why did Comey do this? As to the “unusual” announcement, it’s the outgrowth of the inappropriate meeting between Attorney General Loretta Lynch and Bill Clinton in her plane a few days earlier, which, upon discovery, gave rise for calls for her to recuse herself from the decision-making process as to Hillary Clinton.  Lynch suddenly appeared conflicted, potentially influenced by a former president. so Hillary Clinton’s opponents cried foul. Lynch responded that she would defer to Comey’s recommendation, and that was accepted as the “right” thing to do.

Why, then, be surprised that Comey made a public recommendation? Because it didn’t pan out the way it was expected. Perhaps the Bill Clinton meeting was a brilliant tactic to get Lynch off the hook, remove her from the most volatile political decision an Attorney General would ever be asked to make, and put it instead on the “neutral” shoulders of the FBI Director.

Comey is a (largely*) career prosecutor. He came out of SDNY, served at Main Justice under the Baby Bush administration, and was appointed in 2013 to a ten year term of FBI Director by President Obama.  He’s as much of an honest broker as there is in Washington between the political parties.

So why this “game”? Had the outcome of this investigation been charges, it might well have decided a presidential election. Had the circumstances been a little worse, more smoking guns and dead bodies, it might well have been impossible to credibly skirt an indictment. But Hillary’s conduct was unintentional, albeit “extremely careless,” and while she may well have been hacked and revealed secrets to enemies, there is no proof that happened. Just barely enough to squeeze through a plausible decision not to indict, and thereby remove the criminal justice system from determining the political outcome of a presidential election.

Of course, “plausible” and “credible” are subjective, so your mileage may (and likely will) vary.

And then there are some additional considerations. Some very principled folks will properly be deeply disturbed by the hypocrisy of a powerful person getting a free pass from prosecution when the less powerful would not. There is certainly good reason for this, but it has to be taken in context. There is nothing ordinary about a presidential candidate’s electoral aspirations being contingent on the outcome of a criminal investigation, especially one not involving malevolent intent.

And while it’s true that it is not Comey’s call to decide that Hillary Clinton should not be indicted (and, indeed, it isn’t, in fact, his call, as nothing precludes a prosecutor from indicting her despite Comey’s recommendation), his recommendation was sought mere days earlier. You asked for it. You got it. What’s the beef?

Even without recommending an indictment, Comey’s announcement will unavoidably become a huge influence in the upcoming election. Within hours. Reason created this video:

The New York Times offered this headline in reaction:

F.B.I.’s Critique of Hillary Clinton Is a Ready-Made Attack Ad

For those who either can’t, or refuse, to see the opposite perspective, Patrick Healy spells it out:

She has spent months describing Mr. Trump as “reckless,” “unprepared” and “temperamentally unfit” to be president, and she has pointed to her four years as secretary of state and eight in the Senate as unparalleled preparation for becoming commander in chief.

Yet in just a few minutes of remarks, Mr. Comey called into question Mrs. Clinton’s claims of superiority more memorably, mightily and effectively than Mr. Trump has over the entire past year. And with potentially lasting consequences.

As some might rightfully react, Comey didn’t “do” anything to Hillary Clinton. Hillary Clinton did it to herself. To the extent she just blew her political appeal, she has no one to blame but herself. If anything, she got away easy, as it’s infinitely more difficult to mount a successful presidential campaign from prison.

Orin Kerr offers the obvious conclusion:

No decision on the Clinton email case will please everyone, of course. But Comey’s announcement takes the path of the least amount of politicalization in a uniquely politically charged case.

Or, in the paradigm of settlements, it leaves no one happy. But while Hillary Clinton may not be judged by twelve, she will be judged.  The charges against her will be decided, just not by a petit jury but by the electorate. Even though Comey weaved his way between the words that would have been written in an indictment, so as not to put a presidential election into the hands of prosecutors, his words are still out there, will certainly be used against Hillary, and a verdict will be reached in the court of public opinion when Americans go to the polls to elect a president.

Whether this is the right or wrong way to resolve Hillary Clinton’s email issues will likely divide along lines of politics, but it has made every voting American a juror in her case. Convict or acquit, or nullify because her other political positions are more important to you, or your views on Trump as the alternative make any other choice untenable, a verdict will be reached.

*Comey took some side trips to make the big bucks along the way, like becoming General Counsel of Lockheed Martin, but he always came back to the government.



43 thoughts on “Hillary Clinton Will Be Tried For Her Conduct

  1. B. McLeod

    People must be quite used to the powerful getting a pass, as it is not an infrequent occurrence. I doubt that any of this will have much impact. Citizens are simply inured to it.

    1. SHG Post author

      It’s unfair to reduce it to such basic terms. This isn’t the typical cop murders guy and walks. The offense involved is a soft offense, malum prohibitum, victimless (as far as anyone can say) and rather hypertechnical. If it happened to Aaron Swartz, everybody would flip sides. So it’s not your typical powerful getting a pass scenario for those reasons alone. Then, add the election on top of it and it’s unlike anything that’s happened before. That might make it worse, rather than better, but it still makes it different.

      1. paul

        As to victimless. The US government defines information classified secret as information whose compromise would result in grave damage to the security of the united states. Its been noted that she used this email while abroad in nations that have advanced survaillence apparati– aka it has been compromised.

        Out of curiosity, do you think her conduct constitutes gross negligence?

        1. SHG Post author

          1. Victimless means that there is no individual directly harmed by the conduct.
          2. Out of curiosity, why would I answer your question? If I wanted to express an opinion, I would have done so in the post.

          1. paul

            Oops. I figured that just wasnt the thrust of the post you wanted to focus on as opposed to purposefully silent. Apologies.

  2. Greg

    To me, this is the most striking part of Comey’s statement:

    “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.”

    Conspicuously missing is the part that says “BECAUSE” — the reason WHY “that is not what we are deciding.” Comey didn’t even try to give one.

  3. Scott Morrell

    Not taking a political side, I just cannot square the statement he made about “no reasonable prosecutor would indict..” based on these charges are just plain false. Last year in March 2015, Chief Petty Officer Lyle White pleaded guilty to basically the same crime. No intent was found, just negligence in handling classified documents.

    Comey MUST answer the salient question what the differences were in these two cases. We know what it is though….politics, and Comey not being the “one’ who wanted to have shaped the election. He punted and that is OK since discretion is allowed and it is a technical crime with presumably no harm to others (yet to be seen though with hacked emails floating around in the net). However, the fact that he inserted the “no reasonable prosecutor” part in his statement puts him in a pickle now.

    1. SHG Post author

      I kinda thought I said this. Although, putting the word “MUST” in all caps doesn’t really make it so. Just sayin’.

      1. Scott Morrell

        Love the DRY humor. Yes, putting it in caps indeed makes it so!

        Again, not being a lawyer, I wonder if it was proper for Comey to basically convict her in the court of public opinion, which you aptly stated. But is this the role of the FBI? I thought they are quite in their decisions. Why was he not here? A rhetorical question of course (politics dictated this decision), but by doing so he kinda gave Clinton no due process in court while at the same time saying he was making the right decision that favored Clinton with no recommended indictment. So, he needed to explain to the public that he found her actions extremely careless. Heck, the average layperson would find that an indictment! I find the entire folly troubling with many contradictions. But yes I get your point. I am probably just saying it in another way.

    2. Mark

      Basically the same crime?

      He pleaded guilty to violating military regulations in a military court. Are the two legal arenas the same? Maybe Hillary could be tried for failing to salute a superior officer?

      (I’m not a lawyer either. I’d play one on TV, but I’m not an actor either).

  4. ryan

    Mr. Comey states that: “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.”.

    Mr. Comey knows this is irrelevant to the issue of intent. As a former prosecutor, he’s also knows he has told innumerable juries that intent can be inferred from conduct . . . such as intending to set up a private severer to house classified information. He said it anyway, I suspect to “intentionally” confuse the largely ignorant public, and give talking heads on both sides of the political spectrum something to run with. Why else say it? I had a Judge not even let me finish my sentence, when I started to say my client didn’t intend to violate the statute at issue.

    1. SHG Post author

      Of course. As every trial lawyer knows, intent is inferred from the decision to engage in the conduct at issue. But not everyone is a trial lawyer.

      1. Ryan Probasco

        why did he say it then? He knew it wasn’t relevant to whether she “intended” to commit a crime. Was it just to fool the masses, and apparently the NY Times editorial board.

        1. SHG Post author

          Why are you using my bandwidth to ask Scott, who isn’t a lawyer? Do you think Scott has magical powers to read Comey’s mind?

  5. DaveL

    It certainly is nice to see the mens rea requirement again. It’s been a long time. Do you have any idea how long it’s going to be in town? I might like to have it over for dinner before it has to leave again.

  6. LTMG

    The actions of AG Lynch and Director Comey seem very clear. After the election and inauguration they want to keep their jobs if Hillary Clinton wins.

      1. Jim Tyre

        A President can remove the FBI Director. The other Clinton removed William S. Sessions, the only time it’s been done under modern law.

        1. SHG Post author

          I remember. I was invited to Louie Freeh’s induction. But you bring this up why? Are you suggesting there is a comparison between what Comey did here and what happened with Sessions? Or is this just an orthogonal factoid comment?

          1. Jim Tyre

            Clearly no comparison. It seemed relevant to your comment above. But I could be wrong.

    1. SHG Post author

      Very few people knew about the “running for president” exception. Now you’re one of them. You’re welcome.

  7. wilbur

    One thing is unclear to me (of several things). I read that Hill’s IT guy took the 5th over a hundred times in his statement to the authorities. If there was one guy in this whole affair you would think they would have reason to immunize, it’s him. I’d like to someone to ask Comey why they didn’t.

    1. SHG Post author

      Huge risk. Confer immunity and he spews how it was all his fault, Hillary knew nothing and tried to stop it from happening, but he forced her to use her iPhone at Starbucks to check with spies and negotiate with Russia. Later, he lands a job at Clinton Foundation. It could happen.

  8. John Barleycorn

    * Who goes there anymore?

    But, if you are going to go there, with the side trips while mater of factly speculating that there is no such thing as an honest broker inside the beltway while holding up the mythos of the electorate as the final arbiter, so you can feel better, while floating the enduring service fluff of “…but he always came back to government.”, you got to go there no?

    Sort of like Yonkers really:

    ♡In August 2005, Comey left the DOJ and he became General Counsel and Senior Vice President of Lockheed Martin. In 2010, he became General Counsel at Bridgewater Associates. In early 2013, he left Bridgewater to become Senior Research Scholar and Hertog Fellow on National Security Law at Columbia Law School. He also joined the London-based board of directors of HSBC Holdings. In 2013, Comey was appointed as the director of the FBI by President Barack Obama.♧

    P.S. I also think he took a seat at the Defense Legal Policy Board in 2012.

    Is that Board sort of like a Patrolmen’s Benevolent Association for inside the beltway folks that makes recommendations to the city council and the mayor as to whom you can and can not kill in places like Afghanistan, Algeria, Iraq, Iran, Liby, Pakistan, Somalia, Syria, Yemen et al as opposed to places like Chicago, Charleston, Minneapolis, New Orleans, Los Angeles, et al?

    Or is that Board more like the an inverted Innocent Project for Methodists working at the FBI who have guilt while “brokering” or something?

    Relax esteemed one..Why you even put up this post is mystery but don’t you worry, everything is gonna be alright and in the unlikely event that James gets your slot on the short list for the next supreme slot I will buy you a pudding pop and pull some strings at the Department of Education and make sure you get that government job before you turn 65.

  9. KP

    Lyle White joins those like Martin Armstrong and Edward Snowden who didn’t have the right family connections to stay out of jail… without a trial or charges, or even any victims.

    America really needs to import some “reasonable prosecutors”, obviously theirs are not even up to “mediocre” never mind “reasonable” or “just OK”…

    1. Mark

      The FBI investigated Clinton to see if she committed a crime. There was apparently no evidence to warrant an indictment.

      These guys committed crimes:

      Martin Armstrong went to jail for contempt of court for not turning over property as ordered by the court. Japanese investigators found that he was running a Ponzi scheme. He eventually pled guilty to conspiracy.

      Edward Snowden (God bless him) was charged with ” theft of government property, and two counts of violating the Espionage Act through unauthorized communication of national defense information and “willful communication of classified communications intelligence information to an unauthorized person.”

  10. bill mcwilliams

    J. “Edna” Hoover famously denied the existence of the Mafia in this country.
    He knew how to keep his job and Clyde. Comey may be keeping his Clinton Foundation investigation cards close to his vest for use in a career continuation plan.

      1. bill mcwilliams

        “Edna” is a reference to the widely held view that certain organized crime figures possessed photos of Hoover in drag, hence Hoover’s denial of the existence of organized crime in the U.S.

        Anthony Summers and other others have written about this. I assumed that you were aware of this. I thought your knowledge of Hoover would
        override your desire to belittle my comment.

        1. SHG Post author

          Hope you enjoyed that final comment. It will be your last here. You will no doubt believe that it’s because you speak truth to power, but it’s because you’re batshit crazy. Feel free to disagree all you want. Just not here. Bye.

          Edit: Via email from Bill: “what an arrogant little man you are.”

  11. TheHaywardFault

    I don’t think Mrs. Clinton would be indicted even if she somehow weren’t the “presumptive nominee”, though it gives me a warm fuzzy to think of her not getting her way. Someone as high in the annals of power as she doesn’t simply get indicted over anything less than a hand in the cookie jar.

    The thought of her being judged and found wanting in the court of public opinion pleases me, despite the possible (and in my opinion, rather dire) consequences of a Trumpidency. Hopefully Mr. Comey’s “punt” is enough.

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