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Donald Trump has grabbed headlines by claiming Hillary Clinton’s email fiasco is “worse than Watergate.” To the horror of liberal America, Trump promised in the second debate that Clinton will “be in jail” for her emails if he becomes president. These are the kinds of polemics that capture journalists’ attention, but they aren’t very helpful for those looking for a thoughtful historical and legal explanation of the email controversy.
Clinton’s emails have returned to the headlines because of FBI director James Comey’s recent letter to Congress announcing that he has discovered emails from Clinton’s aide Huma Abedin that “appear to be relevant” to the FBI’s investigation. Clinton supporters condemned Comey’s admissions that “the FBI cannot assess whether or not this material may be significant,” that he is unsure “whether they contain classified information,” or whether any of the emails even retain “importance to our investigation.” His vague language was used by critics to frame Comey as throwing his hat in the political ring, attempting to tilt the 2016 election toward Donald Trump. Democratic Senator Harry Reid suggested that Comey may have violated the Hatch Act of 1939, which prohibits federal employees from actively supporting election candidates. Comey’s actions, at the very least, run contrary to longstanding precedent at the Department of Justice and FBI to not get involved in electioneering in the months before election day.
To hear Comey tell it, he decided to put out the letter to update Congress on the reopening of the investigation. As Comey stated: “we don’t ordinarily tell Congress about ongoing investigations, but here I fell an obligation to do so given that I testified repeatedly in recent months that our investigation was completed…I also think it would be misleading to the American people were we not to supplement the record.” Whether Comey understood that he was entering in the partisan election game by sending the letter, the reality is that his words have been used by the Trump campaign and Republicans to suggest that Clinton was involved in criminal behavior and should be prosecuted as such.
The reemergence of the email fiasco speaks to old questions about whether Clinton violated federal law, and a new question – is the comparison to Watergate appropriate? John W. Dean, a former counsel to Richard Nixon and co-conspirator in the Watergate scandal weighed in on this in a recent New York Times op-ed arguing that the comparison is “nonsense.” More specifically, Dean argues about Clinton: “She was unaware that a few classified items — some of which were classified after the fact — were in her private email system. Unlike Nixon, she has apologized. The F.B.I. record also shows that — again, unlike Nixon — she had no criminal intent in any of her actions.” Dean’s words are unlikely to convince political opponents and critics of Clinton, but the question still stands: did Clinton violate federal law by disseminating classified materials?
Part of the problem for Clinton is that she doesn’t have much credibility in terms of her history of double-talk regarding the emails. She has stated in the past, inaccurately, that “I never sent or received any classified material” and that “I never received nor sent any material that was marked classified.” But Clinton sent numerous emails that contained classified materials, in addition to two emails with materials that were marked classified. As has been previously reported, the FBI investigation of Clinton found 110 emails that contained classified information, and eight email chains that contained top secret information. While Clinton has apologized for the emails, there’s no doubt this incident has tarnished her image and perceptions of her truthfulness – or lack thereof.
Comey editorialized during his testimony to Congress that Clinton was “careless” in how she dealt with classified information. He lamented: “any reasonable person in Secretary Clinton’s position or in the position of those with whom she was corresponding about the matters should have been known that an unclassified system was no place for that [classified] conversation[s].” Of course, there was also quite a bit of ambiguity regarding just how much sensitive information was included in these emails. For example, Politifact reports that there is conflict between government agencies in terms of whether specific pieces of information should even be classified: “Agencies regularly disagree over what should be classified or not. As the [Clinton] email story unfolded, the State Department has squabbled with the intelligence community over whether certain emails should be classified today and if it was classified back when it was sent during Clinton’s tenure.” Furthermore, the two emails Clinton sent that were marked classified were apparently done so erroneously. As Politico reported: State Department Spokesman John Kirby stated the two emails were marked classified due to “human error”; they “were mistakes where staff failed to remove the notations while preparing background and talking points for Clinton in a planned phone call with a foreign official.”
The above findings suggest that there is a lot of ambiguity regarding whether the emails Clinton sent were relevant to protecting national security. To date, there has been no concrete evidence presented suggesting that any Americans were put in harm’s way due to the communications due to Clinton’s emails. But it is also predictable that citizens would react negatively to the email fiasco, considering the way Clinton’s statements contradict her actions regarding the sharing of classified information.
But did Clinton break the law? To answer this question, we have to look closely at the relevant legal statutes, at legal customary practice within the FBI and DOJ, and at Supreme Court precedent, as related to the sharing of classified information by government employees. The simplest answer to our question is that it is difficult, perhaps impossible, to make an objective argument that Clinton violated the law looking solely at legal statute. The most relevant piece of legislation regarding sharing classified information is the Espionage Act of 1917, which Comey looked closely at when assessing Clinton’s emails. In 18 U.S. Code § 793, the law lays out legal punishments against those “gathering, transmitting or losing defense information.” It states the conditions under which it’s illegal to disseminate classified 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 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.”
Looking closely at the language of the Espionage Act, we can now assess whether the provisions are relevant to Clinton’s case. First, one can dismiss point (2) outright, at least if we are to take Comey at his word that his investigation failed to find evidence that Clinton knowingly trafficked in classified material. If Clinton did not have “knowledge” that document were being illegally removed and shared, then she could not have knowingly violated this provision of the law. Of more importance, however, is provision (1), and particularly the discussion of officials who through “gross negligence” allow documents to be removed or delivered in violation of the government trust. Many of Clinton’s critics argue that unawareness that one is trafficking in classified documents is evidence of “gross negligence,” but most of these discussions are from people with little to no understanding of how “gross negligence” is legally defined. There is no clearly laid out legal definition of what “gross negligence” means under the Espionage Act. The problem of unclear language is common in legislation as those who study politics and the law know all too well. These ambiguities are typically dealt with through interpretation, which in this case comes from the relevant law enforcement agencies (the FBI and DOJ) and the courts.
Legal definitions of legal terms matter, regardless of whether pundits recognize this to be true. These definitions, widely accepted in the legal community, are used in a court of law to convict or acquit individuals of their alleged crimes. The definition of gross negligence from Cornell University Law School is: “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 the notion that an individual is consciously aware that what he or she was doing was illegal and dangerous.
In Clinton’s case, Comey stated unequivocally, based on the FBI investigation, that there was no evidence Clinton knew she was trafficking in classified material, and furthermore no evidence has been presented I am aware of that any specific individual(s) were placed in danger or harmed because of these communications. The FBI investigation uncovered conversations between Clinton and other officials acknowledging that they weren’t allowed to traffic in classified documents, but no evidence was presented that Clinton knew the documents and communications in question were classified. In other words, the FBI inquiry failed to find evidence of intent on the part of Clinton to share classified information.
Intent matters greatly for those who know anything about common law and Supreme Court precedent. The intent issue was dealt with previously in the case of Gorin v. United States (1941), the only case in history (according to Comey) in which a government employee was charged with gross negligence in sharing classified information. In that case, the Supreme Court examined the Espionage Act as it related to a U.S. government employee’s sale of U.S. intelligence to a Soviet spy during World War 2. The court ruled that punishment under the Espionage Act of individuals trafficking in classified information required “bad faith” – more specifically an “intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.” There is no evidence that such “bad faith” or “intent” was present in Clinton’s case.
When asked by Congress, Comey explicitly rejected the notion that Clinton should be prosecuted because she committed “gross negligence” – thereby violating the Espionage Act. His answer was based, in large part, on customary practice. Referencing the Gorin case, Comey explained: “No reasonable prosecutor would bring the second case in 100 years focused on gross negligence…I know the Department of Justice. I know no reasonable prosecutor would bring this case. I know a lot of my former friends are out there saying they would. I wonder where they were in the last 40 years, because I’d like to see the cases they brought on gross negligence. Nobody would, nobody did.” In this statement, Comey is referring to customary practice within the Justice Department, and the aversion to charging Clinton with violating the Espionage Act due to a lack of criminal intent on her part. Comey’s position put him in conflict with South Carolina Republican Representative and House Judiciary Committee member Trey Gowdy, who argued in favor of prosecuting Clinton via a gross negligence charge under the Espionage Act. Gowdy made several reasonable claims during Comey’s testimony, one faulting Clinton for misrepresenting her trafficking in classified materials. He also raised a relevant criticism of a “double-track justice system” in which army privates may be punished for trafficking in classified information, but a Secretary of State and other high level officials are left untouched. This point is likely to resonate with those on the left when reflecting on the actions of army private and whistleblower Chelsea Manning.
Aside from these points, however, Gowdy problematically assumes Clinton’s guilt when he refers to Clinton’s “scheme” to cover her tracks, supposedly by deleting emails of significance to the FBI’s investigation. Gowdy’s comment implies that the former Secretary of State destroyed incriminating data, knowing she had broken the law, to avoid a felony charge. This claim may or may not be true – I can’t say for sure – but the main point is that the FBI uncovered no tangible evidence that this was the case in their exhaustive investigation. Things like evidence matter in prosecution cases, independent of Gowdy’s (and Trump’s) a priori assumption of guilt.
What are we to learn from all of this? I’d offer two main points. First, it is unfortunate that the Republican Party is blatantly politicizing the law, and seeking to manipulate the implementation of the Espionage Act by focusing on Hillary Clinton alone, while saying nothing about the far worse behavior of Republicans themselves. The Bush administration reportedly lost a staggering 22 million emails that were communicated between the president and his advisors, which were coordinated through a private server via the Republican National Committee. To my knowledge, there has never been a detailed investigation of these emails, although there were most certainly classified materials conveyed in these communications.
To date, we haven’t seen anything on the level of the Clinton investigation, to see whether members of the Bush administration violated the Espionage Act or other national security laws via sharing classified material through improper channels. To prosecute Hillary Clinton for her incompetence, ignorance, and carelessness, while exempting the Bush administration, reeks of blatant partisanship and shameless hypocrisy. It’s this kind of extremism that represents a real danger to the rule of law. Trump has no problem voicing proto-fascistic positions, promising Clinton will be “in jail” before any sort of prosecution is even brought (if it ever is), or any formal presentation of evidence occurs in a court of law. This type of extremism is not new to Trump. He rejects any position that doesn’t conform to his pre-existing ideology or agenda – for example, his assertion that the U.S. election is rigged, but only if he loses to Clinton.
A second lesson from the Clinton fiasco: we should pause to consider whose interests are served by such an extraordinary amount of attention to the relatively innocuous issue of Clinton’s emails, at least compared to the actual illegalities and criminal acts committed by the Obama-Clinton administration. The list is long, for those who care to look. During Clinton’ time as Secretary of State, the Obama administration routinely violated the law in numerous areas related to U.S. foreign policy and “national security.” These transgressions include: the illegal U.S. aid sent to Honduras to prop up the military coup against the former government of Manuel Zelaya – a coup that even Barack Obama and members of his administration admitted was illegal and unconstitutional. U.S. aid represented a violation of Section 7008 of the State and Foreign Operations Appropriations Act, which outlaws aid to governments that come to power via a military overthrow.
One could add Obama’s NSA spying on domestic citizens’ communications, which was ruled illegal in the Second U.S. Circuit of Appeals Court in 2015, and as a violation of citizens’ Fourth Amendment privacy rights. Or one could look at Obama’s illegal detention of alleged terrorists without charge, in violation of basic habeas corpus rights, in contradiction to Fifth Amendment due process rights, and the rules established in the Geneva Conventions. Finally, one could look at the Obama administration’s illegal use of torture via renditions to foreign countries, and its illegal assassinations of alleged terrorists without presentation of evidence, arrest, or trial, outside of war zones. These actions contradict several laws, including the United Nations Charter, which outlaws unlawful use of force against sovereign countries, in addition to various international conventions, national laws, and U.S. executive orders.
Of course, the Republican Party remains silent about these illegal and criminal acts for one obvious reason: when they get back into the White House, they want to reserve the “right” to engage in similar illegalities in a moment’s notice, without fear of punishment, and without oversight from Congress or the courts. This is not conjecture, as these illegal acts were already committed during the Bush administration with complete legal impunity.
Republican Representative Trey Gowdy is right to lambast the FBI and DOJ for double standards regarding punishments of army grunts and exonerations of high level officials. But there are obvious ways to deal with this problem. One is for Congress to do its job, and properly define what “gross negligence” means, as related to the sharing of classified material, and to ensure that the DOJ and FBI apply the definition consistently across the board. Congress could redefine gross negligence so that it no longer requires evidence of intent to distribute classified materials. But they have not done so, and that ultimately falls on Republicans who control the House and Senate. Without such clarification, it is unrealistic to expect the FBI and courts to single out Hillary Clinton for punishment, while avoiding felony punishments for other national officials – such as Sandy Berger and David Petraeus – who also recently trafficked in classified materials but received mere slaps on the wrist. Furthermore, U.S. whistleblower laws should be strengthened to protect those leaking government documents – the Mannings, Snowdens, and Assanges of the world – who do so in the name of increasing government transparency. There are reasonable ways to deal with the problems that arise from the Clinton email fiasco. But none have been embraced by Republicans in Congress.