Of course it's not quite that simple. The prosecutors that will review the information developed by the FBI could still choose to bring indictments against Democratic presidential candidate Hillary Clinton for her illegal activities as Secretary of State.
Of course, FBI Director James Comey said that "no reasonable prosecutor would bring such a case." That caused me to wonder just what he meant. Did he mean that the evidence didn't support criminal charges the impression Comey worked terribly hard to convey? Or did he mean that no "reasonable prosecutor" would proceed with such a case because they would know they would be cashiered by DOJ political appointees if they did?
Actually, Comey said more. He said that
To warrant a criminal charge, Mr. Comey said, there had to be evidence that Mrs. Clinton intentionally transmitted or willfully mishandled classified information. The F.B.I. found neither, and as a result, he said, “our judgment is that no reasonable prosecutor would bring such a case.”This is wrong in multiple respects. Here are two:
- There are two statutes that apply to the mishandling of classified information as occurred in this case. One of them requires intent, either intentionally transmission or willfully mishandling of classified information. The other just requires the perpetrator be "extremely careless" i.e., negligent or reckless in the handling of classified information. And Comey demonstrated that Hillary had been "extremely careless" (his words).
- Reasonable prosecutors have brought such charges in the past, including the charges against a former director of the CIA who was indicted for having classified material on his home computer, and was only spared a trial by being pardoned by President Bill Clinton in 2001. And just last year the Obama Administration prosecuted and convicted a naval reservist who downloaded some classified to a personal electronic device but never made it available to anyone else.
And of course General Petraeus was cashiered for far lesser transgressions.
There are a couple of "take-aways" from this situation. One is part of what else the FBI director said.
After announcing his no-charge recommendation, Comey added:Another likely inference is this: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.In other words, laws are for little people.
Clearly "All men are created equal", but some are more equal than others.