With his announcement that he will recommend against prosecution of Hillary Clinton for her email peccadilloes, FBI Director James Comey has set off a political IED, with shrapnel flying in all directions.
The most severely injured is the #NeverTrump movement, of which I am a proud member.
As a purely legal matter, Comey had the stuff to nail the former Secretary of State to the wall of a federal penitentiary. Top-secret information is officially defined as material the unauthorized disclosure of which could be expected to cause “exceptionally grave damage” to national security.
Hillary Clinton sent and/or received such ultra-sensitive information using her homebrew servers, exposing it to hacking. If that is not the “gross negligence” in handling classified materials defined and punishable by statute, then nothing is.
Yet Comey, relying on prosecutorial discretion, recommends against indicting Clinton, distinguishing her case from other security-violation prosecutions in the past.
Four factors were involved in those, he says, that were absent here: obstruction of justice, disloyalty to the United States, disclosure of “vast quantities” of secrets in a way that supports an inference of “intentional misconduct,” and, finally, “clearly intentional and willful mishandling of classified information.”
It seems that the FBI found no trace of the first three. But what about the last? Comey reports evidence that Clinton and her associates “were extremely careless in their handling of very sensitive, highly classified information.” But, relying on a remarkably pinched conception of “intentional and willful,” he lets them off the hook.
The players here are all highly experienced national-security hands who had been briefed innumerable times on information security regulations. If setting up a private server to handle official communications was not an intentional and willful act, what was it, somnambulism?
It cannot be disputed that if any rank-and-file foreign service officer had done a scintilla of what Team Hillary did to circumvent security, he or she would be looking at a long stay behind bars.
Hillary Clinton, moreover, is being treated quite a bit more leniently than even previous high value offenders.
The most pertinent case is that of former CIA director John Deutch, who in 1996 was caught storing a large volume of classified information on an unsecure home computer. No secrets were compromised yet Deutch agreed to plead guilty to a plea-bargained misdemeanor charge. He only dodged that bullet when President Bill Clinton issued a preemptive pardon on the last day of his presidency.
Donald Trump is now whining that Comey’s decision proves the system is rigged. In actual fact, both Trump and Hillary Clinton are its major beneficiaries. Hillary wins, obviously, because she avoids prosecution. Trump wins, obviously, because Hillary is now more damaged than ever.
The big loser is the #NeverTrump movement. Instead of driving Hillary Clinton out of the race and enabling a Democrat with integrity to run, James Comey — perhaps terrified at the ramifications of indicting the presumptive nominee of a major political party just weeks before its national convention — has helped to bring an ignorant, unhinged, bigoted, lying, demagogue ever closer to the White House.
Gabriel Schoenfeld is the author of “Necessary Secrets: National Security, the Media, and the Rule of Law.”