By David French
| National Review
I know this is ancient history, but
— I’m sorry — I just can’t let it go.
When historians write the definitive,
sordid histories of the 2016 election, the FBI, Hillary, emails, Russia, and
Trump, there has to be a collection of chapters making the case that Hillary
should have faced a jury of her peers.
The IG report on the Hillary email investigation
contains the most thoughtful and thorough explanation of the FBI’s decision to
recommend against prosecuting Hillary.
At the risk of oversimplifying a long
and complex discussion, the IG time and again noted that (among other things)
the FBI focused on the apparent lack of intent to violate the law and the lack
of a clear precedent for initiating a prosecution under similar facts.
It also
describes how the FBI wrestled with the definition of “gross negligence” —
concluding that the term encompassed conduct “so gross as to almost suggest
deliberate intention” or “something that falls just short of being willful.”
After reading the analysis, I just
flat-out don’t buy that Hillary’s conduct — and her senior team’s conduct —
didn’t meet that standard. The key reason for my skepticism is the nature of
the classified information sent and received.
Remember, as Comey outlined in
his infamous July 5, 2016 statement,
Hillary sent and received information that was
classified at extraordinarily high levels:
For example, seven e-mail chains
concern matters that were classified at the Top
Secret/Special Access Program level when they were sent and
received.
These chains involved Secretary Clinton both sending e-mails about
those matters and receiving e-mails from others about the same matters.
There is evidence to support a conclusion that any reasonable person in
Secretary Clinton’s position, or in the position of those government employees
with whom she was corresponding about these matters, should have known that
an unclassified system was no place for that conversation.
If you’ve ever handled classified
information, you understand that there are often judgment calls at the margins.
When I was in Iraq, I often made the first call about classification.
In other
words, I determined whether to send information up the chain via the
unclassified system (NIPRNet) or the classified system (SIPRNet). Entire
categories of information were deemed classified by default. Other categories
were commonly unclassified.
But sometimes, I had to make a choice. And
sometimes, the choice wasn’t clear.
The lack of clarity, however, wasn’t
between unclassified and Top Secret.
Much less between
unclassified and Top Secret/Special Access Program (TS/SAP).
There might be tough calls between unclassified and
confidential — or maybe between unclassified and secret.
But the gap between
unclassified and Top Secret, much less SAP, was and is vast, yawning, and
obvious.
In fact, the IG noted that “some witnesses expressed concern or
surprise when they saw some of the classified content in unclassified emails.”
I bet they did.
The IG indicated that State
Department security procedures were lax, and that if the DOJ were to prosecute
Hillary, it would have to prosecute many other employees.
Well, if the employees are sharing TS/SAP information on
unclassified systems, then let the prosecutions commence.
But I’m dubious that
it’s common to share information that highly classified.
In fact, when
the IG outlined allegedly “similar” cases where the DOJ declined to prosecute,
they weren’t similar at all.
Moreover, it’s important to remember
that one can’t generally simply copy/paste or forward emails from classified to
unclassified systems. (That’s likely why the emails on her homebrew system
didn’t contain classified headers.)
A person has to take information from one
source and summarize it or painstakingly type it out on another platform. All
of that takes effort. All of it requires intention.
And it’s one reason
why I have confidence that if Hillary had been Captain Clinton, United States
Army, instead of Secretary Clinton, Democratic nominee for president, then the consequences would have been very
different indeed.
In reading the report, I’m reminded
of Homer Simpson’s famous declaration, that alcohol is the “cause of, and
solution to, all of life’s problems.”
For Hillary, the FBI turned out to be
first the solution to, then the cause of, the decline of her campaign.
By
wrongly refusing to recommend prosecution, it made her candidacy possible.
By then failing to follow proper procedures in its two later public
announcements, it helped end her presidential dream.
David French — David French is a senior writer
for National Review, a senior
fellow at the National Review Institute, and a veteran of Operation Iraqi
Freedom. @DavidAFrench