Today FBI Director James Comey announced that he would be recommending that the Justice Department pursue no charges against Hillary Clinton related to her mishandling of classified material while Secretary of State. Attorney General Loretta Lynch, an old friend of the Clinton’s, has previously stated that to prevent her friendship from influencing her decision to prosecute, she would follow the FBI’s recommendation.
Comey noted that, contrary to Clinton’s public statements, she had handled classified information via her private, unsecured email server. He admitted that she had been extremely careless and that her negligence may well have resulted in classified information falling into the hands of foreign powers, but insisted that there was no evidence of “intentional and willful mishandling,” therefore she should not be prosecuted.
The problem is, that isn’t a distinction that the law makes. There are laws that criminalize removing classified information with the intent to harm the US, but Title 18 U.S. Code Section 793 (f) also makes it illegal for those who have lawful access to classified information to allow it to be removed through gross negligence. Negligence, by definition, does not require intent, and Comey himself admitted that Clinton was guilty of negligence that resulted in misplaced classified information, despite her repeated statements to the contrary.
She broke the law, and she lied about it. Anyone else would have been prosecuted, but because of her status, she won’t even face a trial. Once again, a Clinton beat the rap, but there’s an even deeper problem. The American system, following the British model, is based on the idea that the law is king; that no one, no matter their station, is above the law. Without that concept, the American system cannot work.
That, then, is what’s truly troubling about Clinton’s de facto acquittal of a crime we all know she committed. The decline in the rule of law is hardly surprising or new—for years now the position that we should interpret laws based on what they were intended to mean has been merely one minority view among the judiciary—but every fresh step downhill is jarring. The rule of law in the US may not be dead, but it doesn’t appear to be getting better, either.