Ignorance of the law is no excuse.
Or is it?
That’s just one of the troubling questions raised by the FBI’s recommendation, announced Tuesday, that presumptive Democratic presidential nominee Hillary Clinton not be prosecuted for mishandling classified information while she was Secretary of State.
FBI Director James Comey based that call on what he said was Mrs. Clinton’s lack of proven intent to break the law. He explained that though “there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
He explained: “Prosecutors necessarily weigh a number of factors before deciding whether to bring charges.”
So were political factors decisive in this case?
The FBI director said that Secretary Clinton and her colleagues “were extremely careless in their handling of very sensitive, highly classified information.”
He said that of the 30,000 emails Clinton turned over to the State Department in 2014, 110 of them contained classified information “at the time they were sent or received” — and that eight of those were designated “top secret” and 36 others “secret.”
More from Mr. Comey:
“We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving work-related emails 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 email account.”
That sounds like a gravely serious breach of security — and responsibility.
However, Mr. Comey said prosecutions in similar cases “involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of information 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. We do not see those things here.”
Then he added: “To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions, but that’s not what we’re deciding now.”
Still, America’s voters will be making a crucial decision on Nov. 8 — and the emails case damages Mrs. Clinton’s case for the presidency.
So did Attorney General Loretta Lynch’s private meeting with former President Bill Clinton at a Phoenix airport last week. Ms. Lynch later admitted that the meeting “cast a shadow” on the Justice Department’s handling of the emails investigation.
Yes, prosecutorial discretion routinely results in no charges being filed for some violations of the law.
But prosecutorial decisions about politicians also frequently produce fair suspicions of motives.
And Gen. David Petraeus, the former CIA director caught in his own case of extremely careless emails, pleaded guilty last year to a misdemeanor charge of mishandling classified materials.
Gen. Petraeus got two years’ probation and a $100,000 fine.
Mrs. Clinton got a free pass.
Her defenders stress that FBI Director Commey is a Republican — and that unlike Gen. Petraeus, she wasn’t clearly culpable for intent in her breaches of email security.
Then again, an applicable statute cites “gross negligence” in handling classified communications as a criminal offense — and makes no mention of intent.
Meanwhile, don’t count on a supposed lack of provable intent sparing you from criminal charges if you break the law.
But you can count on this story further undermining Mrs. Clinton’s already-shaky credibility.