RUTHFULLY YOURS

There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.

Yet, Director Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.

I would point out, moreover, that there are other statutes that criminalize unlawfully removing and transmitting highly classified information with intent to harm the United States. Being not guilty (and, indeed, not even accused) of Offense B does not absolve a person of guilt on Offense A, which she has committed.

It is a common tactic of defense lawyers in criminal trials to set up a straw-man for the jury: a crime the defendant has not committed. The idea is that by knocking down a crime the prosecution does not allege and cannot prove, the defense may confuse the jury into believing the defendant is not guilty of the crime charged. Judges generally do not allow such sleight-of-hand because innocence on an uncharged crime is irrelevant to the consideration of the crimes that actually have been charged.

It seems to me that this is what the FBI has done today. It has told the public that because Mrs. Clinton did not have intent to harm the United States we should not prosecute her on a felony that does not require proof of intent to harm the United States. Meanwhile, although there may have been profound harm to national security caused by her grossly negligent mishandling of classified information, we’ve decided she shouldn’t be prosecuted for grossly negligent mishandling of classified information.

I think highly of Jim Comey personally and professionally, but this makes no sense to me.

Finally, I was especially unpersuaded by Director Comey’s claim that no reasonable prosecutor would bring a case based on the evidence uncovered by the FBI. To my mind, a reasonable prosecutor would ask: Why did Congress criminalize the mishandling of classified information through gross negligence? The answer, obviously, is to prevent harm to national security. So then the reasonable prosecutor asks: Was the statute clearly violated, and if yes, is it likely that Mrs. Clinton’s conduct caused harm to national security? If those two questions are answered in the affirmative, I believe many, if not most, reasonable prosecutors would feel obliged to bring the case.

Tuesday morning, FBI Director James Comey stepped up to a podium and calmly and methodically demolished every single Hillary Clinton lie, spin, and evasion regarding her misuse of classified information. Months of deception blew up in her face. And then Comey decided to make her president of the United States.

Rarely have 30 minutes of television so perfectly encapsulated the decline and fall of the rule of law and the extraordinary privileges enjoyed by America’s liberal elite. After listing abuse after abuse — and detailing lie after lie — Comey declared that “no reasonable prosecutor” would prosecute Hillary for her obvious and manifest crimes. It’s good to be a Clinton.

As we ponder the magnitude of Hillary’s wrongdoing, consider the facts as uncovered by the FBI investigation. Begin with the stunning and sobering reality that Clinton sent and received Secret and Top Secret information from her unclassified, unsecured e-mail account. Here’s Comey:

Seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. (Emphasis mine.)

Nor did it matter that the e-mails weren’t “marked” classified. Again, here’s Comey:

Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.

Moreover, the FBI found “several thousand” of Clinton’s work-related e-mails that had not been turned over to the State Department, including e-mails that contained classified information.

Incredibly, Comey noted that her personal e-mail server was less secure than Google’s Gmail:

None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government — or even with a commercial service like Gmail.

Consider the fact that the FBI determined that “hostile actors” gained access to the private e-mail accounts of people Clinton corresponded with, and the FBI believes it is “possible that hostile actors gained access” her personal account.

I defy any member of the military or any civilian not directly affiliated with Hillary Clinton to engage in such conduct and get away with it. The first thing that would happen is you would lose your security clearance. Next, you would lose your job. Finally, good luck escaping prosecution. Comey claims that prior FBI prosecutions included “some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”

But those aren’t the elements of the relevant crime — which merely requires prosecutors to prove Clinton guilty of “gross negligence” in removing classified information from its proper place of custody. Yet even if those were the elements, Comey outlined many of them in his statement. Hillary Clinton mishandled classified information when “any reasonable person in her position” should have known unclassified systems were “no place” for that information. She deleted e-mails that should have been preserved. She housed national-defense information on a server less secure than Gmail. She lied, repeatedly and publicly. No one less politically connected could get away with misconduct this brazen. No one.

Indeed, Clinton is still lying. As of this afternoon, her own website features a “factsheet” about the e-mail controversy that contains laughably false statements such as this: “Clinton only used her account for unclassified email.” And it still repeats the legally irrelevant and intentionally misleading claim that “no information in Clinton’s emails was marked classified at the time she sent or received them.”

Further, despite the fact that thousands of deleted messages were work-related (and some contained classified information), she still claims that the e-mails she didn’t turn over were “private, personal records” containing “emails about her daughter’s wedding plans, her mother’s funeral services and condolence notes, as well as emails on family vacations, yoga routines, and other items one would typically find in their own email account.”

It would be a mistake to consider this outrage in isolation. Scandal and incompetence follow Hillary Clinton like the cloud of filth that accompanies Peanuts’ Pig-Pen. She botched the Libya intervention so thoroughly that the country is now an ISIS playpen. Her State Department left men alone to die in Benghazi, then she misled the American people to cover up her own failure. Her family foundation is a pay-to-play influence-peddling operation. And now we know that she mishandled classified information and lied to conceal her own wrongdoing.

But rules and standards are for the little people. The FBI demolished every Clinton excuse and blew apart every Clinton lie, but soon she might well walk into rooms serenaded to the sweet sounds of “Hail to the Chief.” To paraphrase the words of Benjamin Franklin, we’ve got a banana republic, if Hillary can keep it.

— David French is a staff writer at National Review and an attorney.