At Think Progress, Ian Millhiser helpfully explains why Hillary Clinton won’t be facing any criminal charges for her use of a private email server while serving as Secretary of State. There are a lot of legal issues and precedents to discuss, but it can all be boiled down to one simple thing.
Setting aside the bare language of the law, there’s also a very important practical reason why officials in Clinton’s position are not typically indicted. The security applied to classified email systems is simply absurd. For this reason, a former CIA general counsel told the Washington Post’s David Ignatius, “’it’s common’ that people end up using unclassified systems to transmit classified information.” “’It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.’ People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.”
Indicting Clinton would require the Justice Department to apply a legal standard that would endanger countless officials throughout the government, and that would make it impossible for many government offices to function effectively.
That’s the bottom line.
Of course, Clinton was not exonerated. FBI Director James Comey was scathing at times in his criticism, and would not even guarantee that the former Secretary of State’s emails hadn’t been read by foreign and hostile intelligence agencies.
With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence. We do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal e-mail domain was both known by a large number of people and readily apparent. She also used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account.
There’s been a lot of hype about these damn emails, but Clinton deserves some criticism. She did not get a clean bill of health here, and the subject will be a legitimate issue during the campaign. That doesn’t mean that Donald Trump has handled the controversy with any deftness. By insisting repeatedly that the investigation was rigged, he undermined the case he should be making now, which is that the FBI is credible and should be taken seriously. But, instead, he’s still saying that the investigation was rigged.
That’s basically taking a weak, contentious and conspiratorial case in place of one that is backed up by the investigators. It’s particularly stupid because, now that we know that no charges will be filed, this is an entirely political controversy. And the object, for Trump, should be to get the maximum possible political mileage out of it. He could be making the case that Clinton shouldn’t be trusted to handle the nation’s national security because she did a poor job of safeguarding its secrets when she served in the Obama administration, but he’s instead saying that the FBI engaged in a coverup.
Consider that James Comey was confirmed by the Senate on July 29, 2013 as the director of the FBI for a term of ten years. If Donald Trump becomes president and serves for two full terms, his presidency will end on January 20th, 2025. In other words, Comey would be the FBI Director for all but the last 18 months of a Trump presidency. And, yet, Trump’s reaction to Comey’s statement today is to question his integrity and independence and to run down the organization that Comey heads.
It’s not hard to see that this isn’t the beginning of a good working relationship, and at least some voters will notice this and be concerned about it.
Trump will rile up some people who were already convinced that Clinton is a she-devil, but he won’t get much else out of this if he continues to shift the focus off of where it can help him make a case against his opponent.
The truth is, she should not have been indicted and most people will agree that the correct decision was made. So, focusing on the decision is actually doing her a giant favor.