Hillary’s Email Scandal: The Teachable Moment that Wasn’t

Hillary Clinton’s email scandal may go down as one of the most superficially reported events in recent history. Aside from the poor quality of most news coverage, journalists also obscured the broader lesson of how political elites manipulate national security laws for their own benefit. Most all news stories in recent days relied on the comments of FBI Director Comey that Clinton communicated classified information by email, even if (as she has long stated) most-all the information she drew upon was from State Department briefings and documents that were never marked as classified (Politico, “FBI Findings Tear Holes in Hillary Clinton’s Email Defense,” July 6, 2016). A July 5th report from the New York Times (“What We Know about Hillary Clinton’s Private Email Server”) stated that of “30,000 emails” examined, “8 chains included top secret information,” while “36 included secret information” and “8 included confidential information” – totaling 52 classified emails. A July 5th report from FactCheck.org recounts that “more than 2,000 of the 30,490 emails Clinton turned over to the State Department contained classified information, including 110 emails in 52 email chains that contained classified information at the time they were sent or received.”

It seems clear that the bulk of reporting on Clinton’s emails was severely flawed. Seldom was there a single news story I read that provided any real context for precisely why the FBI decided not to recommend criminal charges against Clinton, if she did in fact traffic in unsecured, classified information. For example, the New York Times reported (“FBI Director James Comey Recommends No Charges for Hillary Clinton on Email”) on July 5th that: “To warrant a criminal charge, Mr. Comey said, there had to be evidence that Mrs. Clinton intentionally transmitted or willfully mishandled classified information. The F.B.I. found neither, and as a result, he said, ‘our judgment is that no reasonable prosecutor would bring such a case.’” But the Times never bothered to reference the applicable national security laws in this case, and its July 5th report also included Republican claims from Congressmen Paul Ryan and Charles Grassley that Clinton may have or did violate national security law. In light of such superficial and contradictory coverage, it was easy for supporters and opponents of Clinton to draw whatever conclusions they wanted.
Then there’s the Washington Post’s main report (“FBI Recommends No Criminal Charges in Clinton Email Probe”) on July 5th, which quoted Comey’s claim that: “Although 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.” Comey’s comment about “potential violations” of national security law was pounced on by conservatives, who took it as clear evidence that the FBI was rolling over for Clinton, despite her illegal actions, when it should’ve called for criminal charges.

But is there actual evidence that Clinton’s actions violated federal law? Comey’s comments could easily be interpreted to suggest that she violated the law. But it’s also difficult to take Comey’s claim about “potential violations” of the law too seriously, especially when he cited no specific violations of federal law. Comey is a Republican appointee, who has a clear political axe to grind in this case. He severely undercut his credibility by hemming and hawing with his contradictory statements that there were “potential violations” of the law, but that he would not recommend prosecuting them. In his and the FBI’s estimation, did Clinton violate the law or didn’t she? For a year-long intensive investigation involving thousands of man hours, is it asking too much for him to take a stance on this simple question? Since major media outlets simply reported Comey’s contradictory statements without question, the central question about the legality of Clinton’s actions was swept under the rug.

The Post’s July 5th piece also contained statements from Donald Trump alleging that the criminal justice system is “rigged” because of Clinton’s non-prosecution, and from Paul Ryan claiming that Comey’s decision not to push for prosecution “defies explanation.” Trump’s and Ryan’s statements obviously endorsed the view that Clinton violated federal law. But by failing to discuss federal law itself, the Post story provided no foundation for assessing Republican claims.

CNBC reported on July 5th that Comey’s decision not to recommend prosecution was driven by the lack of malicious intent on Clinton’s part. It is customary for the Department of Justice to pursue prosecutions, not in cases of simple carelessness, but instead when there is evidence 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.” These stipulations provide some detail regarding Comey’s mindset as he assessed the Clinton emails, but still, there was no attempt by CNBC or most other media to explore whether Clinton actually violated the law or not.

Context matters, even if mass media didn’t provide it in this case. An exploration of federal statute provides better grounds for understanding the Clinton email fiasco. The relevant national law covering this issue is the Espionage Act of 1917, specifically 18 U.S. Code § 793, which covers “Gathering, transmitting or losing defense information.” This provision stipulates conditions under which it is illegal to disseminate classified government information:
“Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence [emphasis added] permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction or destruction to his superior officer – shall be fined under this title or imprisoned not more than ten years, or both.”

The second provision of the Espionage Act cited above appears largely irrelevant to Clinton’s actions, since she never knowingly removed classified documents or information, although the first provision, covering “gross negligence,” is potentially relevant. A lay reader might interpret what Clinton did as “gross negligence,” in light of Comey’s comments that she was “careless” and in dealing with classified information. However, the prevailing legal understanding of “gross negligence” among legal experts is what really matters in terms of determining criminality. And legal experts don’t generally define “gross negligence” simply as being careless or doing something stupid (like sharing classified emails via an unsecured server) that might have caused a national security threat, but didn’t actually do so.

The Cornell Legal Institute defines “gross negligence” as “A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence.” Key in this definition is two things. First, there is the requirement that someone commits a “conscious violation” of “other people’s right to safety” and engages in behavior that goes beyond “simple inadvertence.” In other words, there was no clear intent from Clinton to harm U.S. national security or endanger citizens. This definition obviously informed Comey’s decision not to recommend prosecution. Second, Cornell’s definition of “gross negligence” requires an actual negative impact springing from Clinton’s actions. Minus any evidence that anyone was actually hurt by these emails, no indication of “gross negligence” appears to exist. This fact has been admitted by Comey himself.

Comey is most certainly aware of the importance of proportionality in national security cases. If other national officials have avoided felony prosecutions for committing similar or worse transgressions than Clinton, then there is no precedent in prevailing custom for singling out Clinton under the Espionage Act. To do so would demonstrate a commitment to hyper-partisanship that would destroy any credibility to which the FBI or Comey may stake claim. For example, consider how the FBI and Department of Justice dealt with previous cases when officials trafficked in classified information. General David Petraeus was convicted in 2015 on a misdemeanor charge for essentially trading classified intelligence for sex with his biographer and mistress, Paula Broadwell. It’s hard to argue that Petraeus’s actions were not worse than Clinton’s actions, in light of his shameless and self-interested sharing of classified intelligence. Then there’s former Clinton National Security Advisor Sandy Berger, convicted in 2005 of stealing classified intelligence documents. This transgression was more severe than Clinton’s, although Berger was merely fined and placed on probation, with his security clearance revoked. Like Petraeus, he was convicted only of a misdemeanor, not a felony charge. Even if one was to lower the threshold for what legal experts consider to be “gross negligence,” it’s still difficult to argue that Clinton’s actions warrant a punishment beyond that received by Berger and Petraeus.

Ultimately, I fear that the most important lesson of all has been lost in the obsession with Clinton’s emails. Clinton’s actions, like that of Berger and Petraeus, speak to how those with political power are able to sweep their actions under the rug, while those without power are hammered into the ground when they challenge the state. Legal infractions are dealt with via kids gloves when the powerful violate the law (or potentially violate it in the case of Clinton), but when whistleblowers like Bradley/Chelsea Manning and Edward Snowden leak information in the name of the public good, they are prosecuted to the full extent of the law.

One can quibble with the way in which Manning leaked classified information to Wikileaks, engaging in a massive data dump that may have actually obscured the more important points to come out of the Wikileaks documents, but certainly there was much useful information that was made available to the public that exposed government criminality. For example, consider the revelation that the U.S. was pursuing a secret drone war in Yemen that blatantly violated international law and the United Nations charter, which outlaws criminal acts of aggression against sovereign nations. The Obama administration pursued this criminal war with impunity, and Americans would have been none the wiser if it hadn’t been for Manning’s leaks. Or consider the admissions among U.S. diplomats that the U.S. supports a criminal narco-trafficking gangster government in Afghanistan, contrary to its stated public support for the “War on Drugs.” Or the revelation that U.S. diplomats were illegally spying on other countries, under the false cover of diplomacy.

One can also look to Snowden’s mass leak and thank him for exposing U.S. officials for a dramatic, illegal expansion of government surveillance against its citizens. A federal appeals court ruled in May 2015 that the NSA’s metadata mass surveillance program was illegal, and that it “exceeded the scope of what Congress authorized” under the PATRIOT Act. Civil liberties advocates condemned the program as a fundamental violation of basic privacy rights under the Fourth Amendment. The appeals court ruling, and Snowden’s actions, are widely acknowledged to have pressured the Obama administration to introduce greater restrictions on its mass surveillance program when the PATRIOT Act came up for re-authorization in June 2015.

What happened to Manning and Snowden for providing their whistleblower services? Manning was convicted, among other charges, under section 793 E of the Espionage Act to a 35 year prison term for taking “national defense” related information and sharing it with “persons not entitled to receive it.” Snowden currently resides in exile in Russia, despite U.S. courts acknowledging that the mass spying program he exposed was illegal. It is great historical irony that Clinton, who now stands at the center of her own controversy for spreading classified information, publicly supports Snowden’s prosecution for his data leak. I have no doubt the significance of this hypocrisy escapes Clinton, and this should be expected in a system in which political officials shamelessly manipulate the rules of the game for their own benefit, while punishing the Mannings and Snowdens of the world in their struggle for a more transparent, democratic nation. As we speak, Snowden still awaits prosecution (should he return to U.S. soil) under the very Espionage Act that Clinton was exonerated from by the FBI and Department of Justice.

Unfortunately, Snowden and Manning do not benefit from protections under federal whistleblower laws, as is widely conceded by legal experts and in the media. Manning’s lawyer invoked a whistleblower defense in court in vain, as he was convicted under the Espionage Act. The Espionage Act contains no whistleblower provision for those who expose federal criminality – for example the Obama administration’s illegal international and national spying, and the illegal drone war in Yemen. Furthermore, the 1998 Intelligence Community Whistleblower Protection Act is widely recognized as providing no statutory protections to federal employees for leaking classified government documents.

The Clinton-email controversy is a teachable moment in history. It speaks, first, to the horrific quality of media reporting in the United States. If Clinton disseminated classified information, how do her actions relate to the criminal laws in place – specifically the Espionage Act, and charges (from Republicans) of her alleged “gross negligence?” Reporters failed to provide any meaningful foundation for understanding the legality or illegality of Clinton’s actions. Second, there is the larger point about how political officials avoid responsibility when they violate the law. Officials like Sandy Berger and David Petraeus receive paltry misdemeanor sentences for violating the Espionage Act, while those providing vital public whistleblower services see their lives destroyed as they’re forced into exile and or receive long prison sentences. These points are all worth raising and discussing in detail, although I can’t say I trust the mass media to do them any justice.

Screen Shot 2016-03-17 at 5.07.13 PM

Anthony DiMaggio is Associate Professor of Political Science at Lehigh University. He is the author of Rising Fascism in America: It Can Happen Here (Routledge, 2022), in addition to Rebellion in America (Routledge, 2020), and Unequal America (Routledge, 2021). He can be reached at: anthonydimaggio612@gmail.com. A digital copy of Rebellion in America can be read for free here.