Secrecy is a virtual religion in Washington. Those who violate its dogma have been punished in the harshest and most excessive manner — at least when they possess little political power or influence. As has been widely noted, the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined. Secrecy in D.C. is so revered that even the most banal documents are reflexively marked classified, making their disclosure or mishandling a felony. As former CIA and NSA Director Michael Hayden said back in 2000, “Everything’s secret. I mean, I got an email saying, ‘Merry Christmas.’ It carried a top-secret NSA classification marking.”
People who leak to media outlets for the selfless purpose of informing the public — Daniel Ellsberg, Tom Drake, Chelsea Manning, Edward Snowden — face decades in prison. Those who leak for more ignoble and self-serving ends — such as enabling hagiography (Leon Panetta, David Petraeus) or ingratiating oneself to one’s mistress (Petraeus) — face career destruction, though they are usually spared if they are sufficiently Important-in-D.C. For low-level, powerless Nobodies-in-D.C., even the mere mishandling of classified information — without any intent to leak but merely to, say, work from home — has resulted in criminal prosecution, career destruction, and the permanent loss of security clearance.
This extreme, unforgiving, unreasonable, excessive posture toward classified information came to an instant halt in Washington today — just in time to save Hillary Clinton’s presidential aspirations. FBI Director James Comey, an Obama appointee who served in the Bush DOJ, held a press conference earlier this afternoon in which he condemned Clinton on the ground that she and her colleagues were “extremely careless in their handling of very sensitive, highly classified information,” including top-secret material.
Comey also detailed that her key public statements defending her conduct — i.e., that she never sent classified information over her personal email account and had turned over all “work-related” emails to the State Department — were utterly false; insisted “that any reasonable person in Secretary Clinton’s position … should have known that an unclassified system was no place for that conversation”; and argued that she endangered national security because of the possibility “that hostile actors gained access to Secretary Clinton’s personal email account.” Comey also noted that others who have done what Clinton did “are often subject to security or administrative sanctions” — such as demotion, career harm, or loss of security clearance.
Despite all of these highly incriminating findings, Comey explained, the FBI is recommending to the Justice Department that Clinton not be charged with any crime. “Although there is evidence of potential violations of the statutes regarding the handling of classified information,” he said, “our judgment is that no reasonable prosecutor would bring such a case.” To justify this claim, Comey cited “the context of a person’s actions” and her “intent.” In other words, there is evidence that she did exactly what the criminal law prohibits, but it was more negligent and careless than malicious and deliberate.
Looked at in isolation, I have no particular objection to this decision. In fact, I agree with it: I don’t think what Clinton did rose to the level of criminality, and if I were in the Justice Department, I would not want to see her prosecuted for it. I do think there was malignant intent: Using a personal email account and installing a home server always seemed to be designed, at least in part, to control her communications and hide them from FOIA and similar disclosure obligations. As the New York Times noted in May about a highly incriminating report from the State Department’s own Auditor General: “Emails disclosed in the report made it clear that she worried that personal emails could be publicly released under the Freedom of Information Act.”
Moreover, Comey expressly found that — contrary to her repeated statements — “the FBI also discovered several thousand work-related emails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.” The Inspector General’s report similarly, in the words of the NYT, “undermined some of Mrs. Clinton’s previous statements defending her use of the server.” Still, charging someone with a felony requires more than lying or unethical motives; it should require a clear intent to break the law along with substantial intended harm, none of which is sufficiently present here.
But this case does not exist in isolation. It exists in a political climate where secrecy is regarded as the highest end, where people have their lives destroyed for the most trivial — or, worse, the most well-intentioned — violations of secrecy laws, even in the absence of any evidence of harm or malignant intent. And these are injustices that Hillary Clinton and most of her stalwart Democratic followers have never once opposed — but rather enthusiastically cheered. In 2011, Army Private Chelsea Manning was charged with multiple felonies and faced decades in prison for leaking documents that she firmly believed the public had the right to see; unlike the documents Clinton recklessly mishandled, none of those was top secret. Nonetheless, this is what then-Secretary Clinton said in justifying her prosecution:
I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.
Comey’s announcement also takes place in a society that imprisons more of its citizens than any other in the world by far, for more trivial offenses than any Western nation — overwhelmingly when they are poor or otherwise marginalized due to their race or ethnicity. The sort of leniency and mercy and prosecutorial restraint Comey extended today to Hillary Clinton is simply unavailable for most Americans.
What happened here is glaringly obvious. It is the tawdry byproduct of a criminal justice mentality in which — as I documented in my 2011 book With Liberty and Justice for Some — those who wield the greatest political and economic power are virtually exempt from the rule of law even when they commit the most egregious crimes, while only those who are powerless and marginalized are harshly punished, often for the most trivial transgressions.
Had someone who was obscure and unimportant and powerless done what Hillary Clinton did — recklessly and secretly install a shoddy home server and work with top-secret information on it, then outright lie to the public about it when they were caught — they would have been criminally charged long ago, with little fuss or objection. But Hillary Clinton is the opposite of unimportant. She’s the multimillionaire former first lady, senator from New York, and secretary of state, supported by virtually the entire political, financial, and media establishment to be the next president, arguably the only person standing between Donald Trump and the White House.
Like the Wall Street tycoons whose systemic fraud triggered the 2008 global financial crisis, and like the military and political officials who instituted a worldwide regime of torture, Hillary Clinton is too important to be treated the same as everyone else under the law. “Felony charges appear to be reserved for people of the lowest ranks. Everyone else who does it either doesn’t get charged or gets charged with a misdemeanor,” Virginia defense attorney Edward MacMahon told Politico last year about secrecy prosecutions. Washington defense attorney Abbe Lowell has similarly denounced the “profound double standard” governing how the Obama DOJ prosecutes secrecy cases: “Lower-level employees are prosecuted … because they are easy targets and lack the resources and political connections to fight back.”
The fact that Clinton is who she is: that is undoubtedly what caused the FBI to accord her the massive benefit of the doubt when assessing her motives. Her identity, rather than her conduct, was clearly a major factor in his finding nothing that was — in the words of Comey — “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 a system that accords treatment based on who someone is, rather than what they’ve done, is the opposite of one conducted under the rule of law. It is, instead, one of systemic privilege. As Thomas Jefferson put it in a 1784 letter to George Washington, the ultimate foundation of any constitutional order is “the denial of every preeminence.” Hillary Clinton has long been the beneficiary of this systemic privilege in so many ways, and today, she received her biggest gift from it yet.
The Obama-appointed FBI director gave a press conference showing that she recklessly handled top-secret information, engaged in conduct prohibited by law, and lied about it repeatedly to the public. But she won’t be prosecuted or imprisoned for any of that, so Democrats are celebrating. But if there is to be anything positive that can come from this lowly affair, perhaps Democrats might start demanding the same reasonable leniency and prosecutorial restraint for everyone else who isn’t Hillary Clinton.