UPDATE: Loretta Lynch says the Justice Department is ending its investigation and will not prosecute Hillary Clinton
Even after FBI Director James Comey said he would not recommend the indictment of Hillary Clinton for her extremely reckless handling of classified material, that doesn’t have to be, nor possibly should it be the last word.
As many have pointed out, the decision whether to proceed with criminal charges against Clinton rests with U.S. Attorney General Loretta Lynch. The fact that she has taken herself out of the game by saying in advance that should would accept the FBI’s recommendation, doesn’t mean she has lost the power to decide or can’t change her mind.
Changing her mind at this point of course would be politically explosive, but statutorily she still has that power. And if she valued her integrity, she would exercise that power. And, evaluate Comey’s rationale for not recommending the indictment of Clinton
A wrong decision
She would find that Comey’s standard for not recommending an indictment is flawed, in theory and in practice. He said that he could not find evidence that Clinton had intended to make public or distribute classified material. Nor was there evidence that any possible disclosure was widespread. Or that she meant to harm the United States. She and the State Department could only be accused bungling on an astonishing scale, which is not illegal.
That explanation falls apart when the law is more closely examined. Ill intent is not required for Clinton’s actions to rise to the level of a criminal offense. The law says “gross negligence” is sufficient cause and Comey’s calling her actions “extremely reckless” is legally defined as “gross negligence.” By that standard, Clinton is subject to indictment.
Further, the Justice Department has pursued at least one indictment and conviction against someone who had no intention of disclosing classified information. As the Navy Times reported, A Naval reservist bled guilty and was sentenced last year for mishandling classified military materials.
An FBI search of [the defendant’s] home turned up classified materials, but did not reveal evidence he intended to distribute them. He was sentenced to two years of probation and a $7,500 fine, and was ordered to surrender his security clearance. He is barred from seeking a future security clearance.
He apparently had taken home the classified material in line with his work, which was more convenient. He returned them when his assignment ended. And Hillary Clinton’s excuse for her egregious and illegal actions was that it was more “convenient” for her to have her private server handle all of her emails.
That the powerful Clinton has been exonerated for behaving more egregiously than this reservist only fortifies the belief that there is a different law for the Clintons than for the rest of us. It also will ultimately help increase Donald Trump’s support.
I have a theory–only a theory–why Comey wrote an excuse note for Clinton: He took a bullet for the country. He might have believed that a recommendation for an indictment would have set the stage for an unprecedented, extraordinary and perhaps devastating disruption of the ultimate exercise of our democratic process–the election of a president. It would have been a misguided, but idealistic, reason. He was willing to get targeted by his colleagues, politicians and commentators, to stop a bureaucracy–his–from interfering with the electoral process.
Like I said, it’s only a theory. But one that might explain his willingness to take the course that he did.
But, Loretta Lynch can fix this. And she should. She is the chief law enforcement officer of the country. Her office traditionally and rightly so is supposed to be elevated above politics. When Congress calls Comey to appear before it to explain his reasons for his action, Congress also and more urgently must call Lynch to explain why she has abandoned her own responsibility.
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