In the end, James Comey issued a non-legal indictment
against Hillary Clinton, accusing her of recklessness in mishandling
classified information while concluding that no criminal charges should
be brought.
That, of course, unleashed a storm of partisan
commentary, even though the FBI director hardly gave her a clean bill of
health. And in declining to recommend an indictment, Comey removed the
last shred of doubt that the onetime first lady will be the Democratic
presidential nominee.
I am going to approach the subject as a former
Justice Department reporter who has covered every special prosecutor’s
investigation in recent decades—not as a partisan who either believes
that Clinton did nothing wrong or that she should already be behind
bars.
The key sentence in Comey’s announcement yesterday is
that despite the evidence uncovered by the bureau, “our judgment is
that no reasonable prosecutor would bring such a case.”
I don’t agree with that. The former federal
prosecutor laid out layers of facts that could have supported an
indictment. The gross negligence in using her private email to send
classified information—in direct contradiction of what the candidate has
claimed—could have amounted to one or more criminal charges.
I also believe there was a higher bar with Clinton as
the target. That’s not to say that Comey succumbed to political
pressure, as he insists he did not. But a decision to indict Clinton
would have knocked her out of the presidential race. In that kind of
circumstance, a close call goes to the high-profile target.
Much of the reaction turns on whether Comey’s
reputation as a straight shooter—he was deputy attorney general in the
Bush administration before President Obama tapped him for the
FBI—carries sufficient weight. None of us has seen the voluminous
evidence compiled by the bureau, culminating in Saturday’s interview of
Clinton—days after that spectacularly wrong-headed meeting between her
husband and Loretta Lynch.
Donald Trump wasted little time in tweeting: “The
system is rigged. General Petraeus got in trouble for far less. Very
very unfair! As usual, bad judgment.” Of course, Trump anticipated the
outcome by declaring the system rigged last week, and has said that her
offenses are such that she shouldn’t even be “allowed” to run.
It’s no accident that Comey front-loaded his remarks
with paragraph after paragraph of criticism before announcing that
Clinton would not be charged.
Among other things, Comey blew away Clinton’s
repeated insistence that she never sent nor received classified
information. To wit:
“Although we did not find clear evidence that
Secretary Clinton or her colleagues intended to violate laws governing
the handling of classified information, there is information that they
were extremely careless in their handling of very sensitive, highly
classified information.” And: “Even if information is not marked
‘classified’ in an email, participants who know or should know that the
subject matter is classified are still obligated to protect it.”
In fact, the FBI found 110 emails in 52 separate
chains that were classified when they were sent or received. And intent
does not matter when it comes to bringing charges.
Comey did say he found no deliberate effort to
destroy emails, beyond routine maintenance, but that some of those that
were deleted will never be recovered.
And while the bureau uncovered no hard evidence that
foreign entities had hacked Clinton’s private server, Comey said it was
quite possible, and that the hackers could have covered their tracks.
Clinton’s campaign said it was “pleased” with the
outcome and reiterated that using the private server was a
mistake—though she spent months denying that after the New York Times
broke the story last year.
By branding Clinton “extremely careless,” Comey has
handed Trump, the Republicans and other Hillary detractors ample
ammunition. Indeed, the RNC called the bureau’s findings “a glaring
indictment of Hillary Clinton’s complete lack of judgment, honesty and
preparedness to be our next commander-in-chief.”
It is, as I said, an indictment in all but the criminal sense.
As for any punishment, Hillary Clinton will not have
to go to court. But she will be tried this fall in the court of public
opinion.
Howard Kurtz is a Fox News analyst and the host of "MediaBuzz" (Sundays 11 a.m. and 5 p.m. ET). He is the author of five books and is based in Washington. Follow him at @HowardKurtz. Click here for more information on Howard Kurtz.