Hillary Clinton Dodges Email Shrapnel: A Look at the Pieces


shutterstock_329730683Now that the dust has somewhat settled, it is a good time to review the extraordinary events of this past week in former Secretary of State Hillary Clinton’s long-running “emailgate” scandal.  They add up to a picture that is potentially quite grim.

First, there was the spectacle of former President Bill Clinton shamelessly maneuvering to corner Attorney General Loretta Lynch for a tarmac meeting that plumbed new depths for the phrase “appearance of impropriety.”  No, she was not some green federal prosecutor who never before had to fend off such a blatant ethics assault.  So her failure to deny Mr. Clinton even a putatively “benign” 30 minutes of potential body-language intimidation was nothing less than astonishing.  Unfortunately, this forever taints in the public’s mind any semblance of integrity in what followed, including her suspiciously prescient follow-on statement that she would uncritically accept any FBI recommendation that might imminently be made.

Next there was the long-anticipated interview of Secretary Clinton by the FBI at its headquarters building (sorely named for former FBI Director J. Edgar Hoover) in downtown Washington, D.C., during the Fourth of July weekend.  By all reports, this interview took little more than three hours, which apparently was enough time for Ms. Clinton to convince FBI Director James Comey that she was merely an “unsophisticated” email user who, among other things, could not be counted on to recognize a national security classification marking on some of her incoming work emails even if she happened to notice it in the first place.  She left this interview (which evidently was neither conducted under oath nor in any way recorded) confident as ever, insisting that she had no idea what the FBI’s further investigative “timeline” might be.

Then finally, within hours of our celebrating our national freedom, Secretary Clinton received her long-awaited “get out of jail free” card from the FBI.  In a surprise public announcement on July 5, FBI Director Comey abruptly declared that the Bureau would not be recommending any criminal prosecution of Ms. Clinton, primarily due to the absence of any discernible “intent” by her to commit criminal wrongdoing under the laws prohibiting her email-related actions.  This decision, unprecedented in multiple ways, surprised most interested observers, confounded many others, and raised a host of questions both legal and political.

The upshot of this are things that fall into three basic categories:  the criminal law part, the civil law part, and the part that consists of statements made by Ms. Clinton (or officially on her behalf) that now have proven to have been false (at worst) or in some cases just grossly misleading, thereby impairing her candidacy.  It is important to clearly understand the things that are within the first two categories but also to be concerned with the things in the third category that severely undermine her credibility, thus threatening to aid the chances of a heretofore unthinkable Donald Trump presidency.

Criminal Law

The criminal part of the picture is the most acute one, and it is quite difficult for even experienced legal practitioners to fathom.  First and foremost, it is clouded by the presence of two distinct legal mens rea standards for determining criminal culpability:  “specific intent” and “gross negligence.”  Most crimes are “intent” crimes, with a prosecutor having to establish the defendant’s specific intent to act in violation of the law.  In this case, despite much supporting evidence of “intent,” FBI Director Comey concluded that there existed insufficient “clear evidence” that either Secretary Clinton or any of her closely involved aides violated any of the applicable laws (e.g., pertaining to record removal, record destruction, or the protection of classified information) that require a showing of “intent.”

Others may disagree, but this is indeed the type of “close call” judgment (sometimes known by the old-fashioned term “lenity”) that prosecutors do reach in the exercise of their prosecutorial discretion.  The fact that FBI Director Comey did not actually hold that role in Ms. Clinton’s case, but rather was properly in a position akin to a police chief at a local level, inexplicably did not slow him down from largely speaking as if he actually were the prosecutor in the case.  Most properly, it was for him to merely make a recommendation to Criminal Division Assistant Attorney General Leslie Caldwell and her prosecutorial staff, subject to review by Deputy Attorney General Sally Yates and ultimately (if she were not conflicted due to President Clinton’s tarmac dalliance) Attorney General Loretta Lynch.  The fact that he acted otherwise, however, has garnered little notice or due criticism.

Yet there also was an applicable statute, 18 U.S.C. § 793(f), that makes it a felony to mishandle classified information “through gross negligence.”  This statute, like some others in the realm of criminal law, does not hold a putative defendant’s conduct to the hard-to-prove “specific intent” level; rather, it is triggered by mere “gross negligence” due to the exceptional need to safeguard information of national security sensitivity.  In fact, it is this standard of conduct that is explicitly applied to federal employees when they sign, as Secretary Clinton did, the “NDAs” (i.e., nondisclosure agreements) that they are handed when first provided access to especially sensitive national security information.

In Secretary Clinton’s case, given that the very nature of her position involved the creation and receipt of classified information (e.g., she was a veritable “walking source” of freshly generated foreign relations information), this unquestionably required her to use the State Department’s special email system that is devoted to national security protection.  But she did not do so, plainly as part of her scheme to use her own personal email account (in conjunction with her own private server) exclusively.  And her failure to do so was not occasional or inadvertent; it was systemic.

Notwithstanding this, FBI Director Comey concluded that even this lesser statutory standard was not met in Secretary Clinton’s case.  He declared that she and the close personal aides under her direct supervision “were extremely careless in their handling of very sensitive, highly classified information” — but somehow not “grossly negligent” in doing so.  For those who might wonder (be they attorneys or not) exactly how someone can be “extremely careless” without being “grossly negligent,” Mr. Comey offered little satisfying explanation, neither in his fifteen-minute announcement statement nor his four-hour follow-up congressional testimony.

In fact, he did not even attempt to somehow draw an analytical line between the two terms.  Rather, he spoke indulgently of Secretary Clinton’s professed “unsophistication” with classified matters (“It’s possible — possible — that she didn’t understand what a C meant when she saw it in the body of an email like that.”), of the nature and history of Section 793(f), and of the perceived rarity of her case in relation to any other national security prosecution under a “gross negligence” standard.  It was as if he were saying that her email scheme, unprecedented as it was, was simply too novel for such a high-level prosecution.  (On this latter point, several prosecuted criminal defendants — such as former CIA Director John M. Deutch, FBI Special Agent James Jay Smith, Army Major Jason Brezler, Marine Corps Sergeant Ricki Roller, Air Force Staff Sergeants Arthur Gonzales and Arthur Gaffney, Navy code technician Scott J. Chattin, former Navy radio operator Henry Spade, Navy Chief Petty Officer James McGuiness, Naval Reservist Bryan Nishimura, former NSA analysts David W. Griffith and his wife, and even former Justice Department attorney Thomas Drake — doubtless would take issue with him.)

Civil Law

Then there are the civil laws that Mrs. Clinton so blatantly broke or circumvented, primarily the Federal Records Act (“FRA”), the Records Disposal Act, and the Freedom of Information Act (“FOIA”).  Any requiem for “emailgate” should include further recognition of the fact that she brazenly turned a blind eye to these statutes’ legal requirements (even though they carry no criminal penalties, or any penalties whatsoever for a now-departed federal official).  From her abject failure to properly ensure that all of her work-related emails were captured and maintained for recordkeeping purposes (not to mention responsibly restored after that initial failure), to her entirely unprecedented use of “private server” equipment, to her indulgently irresponsible supervision of her personal aides, and on down to her utter failure to follow any of the FRA’s clear requirements upon her departure, she self-servingly managed to elide all of these statutory commands like no one before her.  (For a recent comparison, see the D.C. Circuit’s July 5 FOIA decision in Competitive Enterprise Institute v. Office of Science Technology Policy holding that “[i]f the agency head controls what would otherwise be an agency record, then it is still an agency record.”)

And she will forever be remembered as the biggest FOIA scofflaw in American history, simply by virtue of her grossly successful evasion of it at such a high official level and even though the competition for that honor is quite stiff.

To be sure, these conclusions are not brand new, inasmuch as they were evident to experts in the field from the outset and last month were corroborated  in a damning State Department Inspector General (“IG”) report that further detailed her defiant acts of statutory noncompliance.  But FBI Director Comey’s public statement, exculpatory as it was for criminal law enforcement purposes, actually added a more powerfully authoritative force to them even though they are not on the prosecutable side of Ms. Clinton’s “accountability ledger.”

He found, for instance, that when his forensic team examined Ms. Clinton’s email servers (yes, over time, there actually were more than one) and undertook a reconstruction, there were “several thousand work-related emails that were not in the group of 30,000” that she had returned to the State Department.  Plus, he said, more than 100 email messages sent through her server contained information that was classified “at the time they were sent,” including some that were Top Secret at the highly classified “special access program” level and three that were among those recovered from her reconstructed server.   And as for her vaunted security precautions, he even pointedly declared that “it is possible that hostile actors gained access to Secretary Clinton’s personal email account (emphasis supplied).”

Political Fallout

As the presumptive Democratic presidential candidate in a race against a grossly deficient Republican opponent, Ms. Clinton thus is the quintessential embodiment of “the lesser of two evils.”  She is at once perhaps the most qualified (by dint of high-level experience) and the least qualified (by dint of defective personal character) presidential candidate ever, one whose breathtaking “evil” ordinarily would doom her candidacy in the eyes of discerning voters.  But this is no ordinary presidential election cycle, because her presumptive Republican opponent, coincidentally, is so erratic and palpably dangerous in his stated views and demonstrated state of mind that his candidacy, by comparison, threatens the Nation to its very core.

In other words, though die-hard Republicans may choose to disagree, Hillary Clinton actually finds herself presenting the best choice, some might say the only sane choice, in this “Hobson’s choice” of an election year.  But in order to be that choice even to those who are appalled by her email perniciousness, and to keep those voters (many of whom are highly principled and highly energized Bernie Sanders supporters) from staying home on election day, she ought to immediately pivot to a public posture on “emailgate” that matches what are now the officially established facts of her case.  In other words, reality has never quite been her friend, but she now should try to strike up at least a passing acquaintanceship with it.

So a successful Clinton presidential campaign should be one that completely sheds the galling defensive verbiage that Ms. Clinton and her spokespersons have used since this scandal erupted last year.  No longer should she state or imply that her novel e-mail scheme was “allowed,” “permitted,” or used only as a matter of “convenience.”  (The former word should be avoided most particularly, because she seems to be so enamored of it that she actually continued to use even after  issuance of the repudiating State Department IG report.)  No longer should she cling to the discredited pretense that what she did was “no different” than what was done by her predecessor(s).  No longer should she maintain the false claim that none of her e-mails contained any “information marked as classified.”  And whatever she does in her debates with Donald Trump, she must at all costs resist her chronic temptation to overstate her current “emailgate” position, no matter how much he baits her to do so.

Most important, without question, is that she not perpetuate her natural defensiveness by quarreling with any aspect of the gift that Jim Comey has given her, particularly his cornerstone judgment that she was “extremely careless.”  Rather, she should make new faith with the American public along the lines of both the State Department IG report and the exculpatory FBI statement, without recidivistically trying to “Clintonize” their words:  “Yes, I was ‘careless,’ perhaps even extremely so.”  “Yes, I violated the Federal Records Act, in more ways than one.”  “Yes, my email set-up effectively circumvented the Freedom of Information Act during the entirety of my tenure and beyond.”  “No, my e-mails were not free of classified information, whether marked as such or not.”

She can even say, to borrow another phrase from Mr. Comey, that there is no “direct evidence” (other than perhaps common sense) that she focused on doing any of this, as she was busy just trying to keep her head above water in a stressful, technologically challenging environment.  This can even include embracing his amazing impression that she was not “sophisticated enough” to know what she was doing.   And she should try to put the best, most arguably honest face on her previous statements by “walking them back” with dignity and newfound integrity.  In asking the electorate to protect us all from the shock-inducing prospect of a Trump Presidency, no sacrifice (even if she views it that way) is now too large for her to make.

Moreover, it should be remembered that Candidate Clinton still faces at least three threatening things:  A renewed State Department email investigation, a possible continued Clinton Foundation investigation by the FBI, and a referral from Congress for a new FBI investigation into whether she lied under oath before one or more congressional committees.  To that should be added an additional genuine concern about the continued viability of her security clearance, given that lesser federal employees invariably lose their clearances after engaging in conduct less problematic than hers.  Yes, this could itself become an intriguing legal question, of deep constitutional dimension, as we head toward her expected presidency.

Lastly, it is worth collaterally noting that if Secretary Clinton, as a former First Lady, proves that she can rise above this horrendous episode (and the worst aspects of her personal character that spawned it) to become a respectable president, then one can only wonder whether current First Lady Michelle Obama (who at age 52 is young enough to seek the presidency for well more than a decade to come) might be not far behind.

Dan Metcalfe is a registered Democrat who has long said that he will vote for Hillary Clinton in November “if she escapes indictment and manages to become the Democratic presidential nominee.”  He served as Director of the Justice Department’s Office of Information and Privacy for more than 25 years, during which time he handled information-disclosure policy issues on the dozens of Clinton Administration scandals that arose within public view, as well as two that did not.  Since retiring in 2007, he has taught secrecy law at American University’s Washington College of Law.

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