The latest in shocking but not surprising news came yesterday as FBI Director
Jim Comey formally recommended not indicting Hillary Clinton for her alleged
mishandling of classified information.
Given America’s less-than-stellar track record of prosecuting the powerful,
this outcome has been a virtual certainty for some time. Even so, the event
is still important. It offers the clearest evidence to date that the rule
of law does not exist. One set of rules applies to the politically connected,
and an entirely different set applies to everyone else. Nothing could illustrate
this fact better than the Clinton email scandal.
Invalid Defenses
Before getting into the details on this issue, it’s worth addressing a few
of the common counterarguments that are offered in defense of the good Secretary.
Overclassification
The idea here is that a lot of information in government is classified for
no reason. Thus, some defenders of Hillary Clinton – including President Obama
himself – implicitly acknowledge that Hillary may have mishandled classified
information. But, to borrow Obama’s phrase, “There’s classified and then there’s
classified.” In other words, since almost everything in government
is classified at one level or another, it’s not really that big of a deal that
Hillary may have sent and received a few emails on an insecure server. Would-be
hackers might have been able to access the lunch menu on Capitol Hill, but that’s
about it.
Of course, it is true that too much information in government is classified.
However, this is beside the point. The relevant question here is whether there
is evidence that Hillary Clinton broke the laws as they are, including whatever
system of classification exists. And if those laws are found to be absurd and
unjust and her conduct is deemed harmless, then a jury could find her not guilty
on those grounds. That is not a decision for the FBI, or the Department of Justice.
It could be argued that not indicting Clinton is just, if it marked a shift
towards leniency in the government’s handling of these cases. That is, maybe
the Clinton scandal drew so much attention to the absurdly aggressive prosecution
of others who have mishandled (questionably) classified information that the
government has discovered the error in its ways. If this were really true and
were accompanied by an imminent pardon of Chelsea Manning and/or a lifting of
threats against Edward Snowden, the Clinton recommendation could almost be cause
for celebration. But there’s no reason to believe this is going to happen. As
we’ll see later, the FBI’s decision was not based on a reevaluation of the justice
of these laws. The laws are just as bad as ever; the FBI simply determined that
Clinton did not violate them.
A final strike against the…