Recent legal analysis
So how does all of this jibe with what Judge Mukasey wrote in the Wall Street Journal last week:
“Yet—from her direction that classification rules be disregarded, to the presence on her personal email server of information at the highest level of classification, to her repeated falsehoods of a sort that juries are told every day may be treated as evidence of guilty knowledge—it is nearly impossible to draw any conclusion other than that she knew enough to support a conviction at the least for mishandling classified information.”
Unfortunately, this is the sort of conflation of possible wrongdoing and crimes for which journalists are often criticized by lawyers. Judge Mukasey, for whom I have enormous respect, should know better. He seems to be arguing that because this all just feels wrong and even criminal-y, she should at least be charged with a misdemeanor. That is, of course, not how the law can or should work. In fact, Judge Mukasey learned the hard way that misstating the law when discussing the case against Clinton can be hazardous. Judge Mukasey also echoed the conservative talking point that the case against Hillary Clinton is eerily similar to the charges against former general David Petraeus:
“This is the same charge brought against Gen. David Petraeus for disclosing classified information in his personal notebooks to his biographer and mistress, who was herself an Army Reserve military intelligence officer cleared to see top secret information.”
Except that it is nothing like that case. Apart from the possible charge, there are actually few or no similarities from a factual perspective as the lead prosecutor in the Petreaus case explained in an op-ed in USA Today
During his tenure as the commander of the International Security Assistance Force in Afghanistan, Petraeus recorded handwritten notes in personal journals, including information he knew was classified at the very highest level. . .
Both the law and his oath required Petraeus to mark these books as “top secret” and to store them in a Secured Compartmented Information Facility. He did neither. Rather, Petraeus allowed his biographer to take possession of the journals in order to use them as source material for his biography.
Importantly, Petraeus was well aware of the classified contents in his journals, saying to his biographer, Paula Broadwell on tape, “I mean, they are highly classified, some of them. They don’t have it on it, but I mean there’s code word stuff in there.” When questioned by the FBI, Petraeus lied to agents in responding that he had neither improperly stored nor improperly provided classified information to his biographer. Petraeus knew at that time that there was classified information in the journals, and he knew they were stored improperly.
In the law, intent can be everything. Petraeus clearly knew he was violating the law, but based on what we know today, there is no evidence–not suppositions or partisan allegations but actual evidence– that Hillary Clinton knew that using a private email server was criminal or even improper at the time. Even assuming for argument’s sake, she created the server to keep her emails out of the public eye, that is in no way remotely comparable to the Petraeus case. Efforts to contrast the two cases fall flat factually and legally.
Government Procedural Rules
But Clinton has also asserted that what she did “was allowed” at the time. So even if she isn’t found to have violated the law, did she violate any non-criminal federal regulations by failing to, at the least, maintain all her records properly?
Probably. According to 2009 National Archives Regulations obtained by Politico:
“Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency record keeping system.”
It’s a tough argument for her to make that the federal records were being preserved properly “in the appropriate agency” which she led from 2009-2013. Furthermore, State Department internal communications made clear as early as 2011, that personal emails should not be used for “official department business.” Any possible ambiguity was eliminated in 2014, when President Obama signed changes to the Federal Records Act that explicitly prohibited federal officials from using personal email addresses unless they also copy or send the emails to their official account
Even before 2014, however, it seems quite clear that the 2009 language and follow up cables from the State Department indicate she did not adhere to proper protocol. But there is a colossal difference between “wrong,” “improper” or even a regulation violation, and a federal crime.
Conclusion
To be clear, none of this means Clinton won’t be charged. There may be a trove of non-public evidence against her about which we simply do not know. It’s also possible that the FBI recommends charges and federal prosecutors decide not to move forward as occurs in many cases. No question, that could create an explosive and politicized showdown. But based on what we do know from what has been made public, there doesn’t seem to be a legitimate basis for any sort of criminal charge against her. I fear many commentators are allowing their analysis to become clouded by a long standing distrust, or even hatred of Hillary Clinton.
In fact, I recently expressed my view of this investigation to a friend who retorted “I didn’t know you are a Hillary guy?” I guess there is almost no way to analyze this case without being accused of partisanship but then please also mischaracterize me in this context as a Dennis Hastert guy, a George Zimmerman guy, a Brendan Dassey guy, a gun control guy and an anti-Obama guy (just to name a few).
Hillary bashing is good clean political sport but a federal criminal indictment is serious business, saved for serious crimes and hopefully based on serious evidence, which as of yet, has not materialized.
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