Danielle McLaughlin: Hillary wins legal battle but Trump rallies in the political war
OPINION: On Thursday, the latest US national poll revealed Donald Trump and Hillary Clinton to be neck and neck in the race to be president. Election Day, November 8, is still a long way off, but the gain for Trump and the loss for Clinton represents the fallout from the announcement last week by FBI Director James Comey that his agency would recommend the Department of Justice not bring criminal charges against her in connection with her use of a private email server during her tenure as Secretary of State.
There has been no shortage of political theatre as the news has rolled out. The subject of Comey's announcement was kept secret, even from the White House and the Department of Justice. Days after the announcement, Comey was summoned by Republicans to testify before the Congressional Oversight Committee and defend the FBI's decision. And this week, Attorney General Loretta Lynch, the head of the Department of Justice, was hauled before the Congressional Judiciary Committee to answer questions about her role in the investigation and her views on its findings. She stonewalled.
So why was there such a furor? You'd think that being cleared of criminal charges would put Clinton in the clear. Certainly, many of her supporters breathed a sigh of relief, determined to put the saga to bed once and for all. But Republicans pounced, deriding it as yet another example of Clinton misdeeds going unpunished because of a system that is "rigged" in their favour, and against ordinary Americans. Well, in law, as in life, nothing is ever that simple.
The decision whether to recommend prosecution or not came down to a finding of whether Clinton was "grossly negligent" in the handling of classified information. The "gross negligence" standard in US law is murky. Some courts just require proof of considerable carelessness. Others require proof of wantonness or willfulness. Here's what the FBI's investigation revealed. There was systemic sloppiness relating to the handling of classified information in the Department of State. Of the 30,000 emails turned over to investigators, Clinton herself authored about 75 emails that contained classified information at the time they were sent, and was on about 2000 email chains that contained emails that were subsequently "up-classified" after they were sent. Three emails sent to Clinton bore incomplete classified markings (called "portion markings"), but two were later determined not to contain classified information at all, and the status of the third couldn't be ascertained. Clinton's correspondence contained emails containing classified information authored by approximately 300 other people. In short, she was far from alone.
My analysis has always been that the evidence did not show the requisite criminal intent, and that other prosecutions for mishandling classified materials, which involved clear evidence of wrongful intent, constrained what prosecutors in Clinton's case could do. Specifically, the case of former CIA Director General David Petraeus. He filled eight notebooks with top secret and classified information, kept them unsecured in his home office, and gave them to his biographer-slash-lover a few weeks after explaining to her in an interview (that she recorded) that they contained highly classified information. And he lied about it all to the FBI. The General escaped with a guilty plea to a misdemeanour with no jail time. At the time, prosecutors involved in the case worried out loud that this light sentence would somehow hamstring later prosecutions. They were probably right.
And remember that Comey and his team have the sworn statements of Clinton's IT guy, Bryan Pagliano, who set up and maintained the Clinton email server. With full protection from prosecution, it is evident that Pagliano's testimony aligned with that of Clinton and her aides - that she used the email system for convenience, and probably for privacy. Comey found evidence that Clinton was "extremely careless," but not "grossly negligent." Ergo, she lacked the requisite criminal intent.
Clinton won the legal war. But this week's polls indicate she's been wounded in the political battle. And she needs to stem the bleeding. In offering a harsh critique of Clinton's email practices, James Comey handed Donald Trump an attack ad on a platter. Ever the showman, expect more jabs at "Crooked Hillary." Political theatre indeed.
- Sunday Star Times