Is Hillary Clinton too big to indict?

Many see a double standard in the FBI's recommendation not to prosecute Hillary Clinton for her use of a personal email server. But some say there's good reason for that.

Is Hillary Clinton too big to fail? In other words, does her status as the presumptive Democratic nominee for president protect her from criminal charges related to her use of a personal server for State Department communications?

That’s what top Republicans are saying in the wake of Tuesday’s announcement by Federal Bureau of Investigation Director James Comey that the bureau won’t recommend prosecution of Mrs. Clinton for her handling of classified emails. It’s one reason why the GOP-controlled House will hold a hearing Thursday on the FBI’s decision.

That hearing could be a pivotal forum for Clinton’s foes. They’d like to portray the former secretary of State as the undeserving beneficiary of what presumptive GOP nominee Donald Trump labels a “rigged system.”

After all, voters already give Clinton low marks for trustworthiness. Anything that reinforces that feeling could be good for the Trump campaign. Plus, it could keep the spotlight off Mr. Trump’s own controversies – at least, for a while. For Trump supporters, extending the period of Clinton’s troubles is now job one.

“This is one of the reasons why people are so dissatisfied, so upset about government. They think that people live by a different set of rules, and the Clintons, they take the candle on this one,” said House Speaker Paul Ryan during an appearance Tuesday on Megyn Kelly’s Fox News show.

Why Comey essentially said 'never mind'

Mr. Ryan and other Clinton critics say that the split nature of Director Comey’s press conference was disorienting.

At first, the FBI director listed what Clinton did wrong, noting among other things that on her private server she’d sent and received messages that were classified at the time. Her handling of secret material was “extremely careless,” Comey said.

It seemed as if he might be leading up to a recommendation that the Justice Department prosecute Clinton, after all.

And then he said, in essence, “never mind." The agency would not urge the Justice Department to prosecute Clinton, he said. “No reasonable prosecutor would bring such a case,” according to Comey.

Why not? President Obama’s Justice Department has a history of pursuing officials who leak secrets, points out journalist Glenn Greenwald, who wrote some of the initial reports on classified information provided by ex-National Security Agency contractor Edward Snowden. The Obama administration has brought more cases under the 1917-era Espionage Act than all previous administrations combined.

While the Snowden case hinged on massive leaks, many of these prosecutions didn’t. Former Central Intelligence Agency employee Jeffrey Alexander Sterling and former NSA executive Thomas Andrews Drake were both convicted of various charges related to small amounts of classified material.

“Had someone who was obscure and unimportant and powerless done what Hillary Clinton did – recklessly and secretly install a shoddy home server and worked with Top Secret information on it, then outright lied to the public about it when they were caught – they would have been criminally charged long ago, with little fuss or objection,” writes Mr. Greenwald at The Intercept. 

The importance of motives

Perhaps. Motivation is a factor here, however. Both Messrs. Sterling and Drake leaked information to reporters. (As did Mr. Snowden, obviously.) Clinton did not.

In Clinton’s case, there is no evidence of clear and willful mishandling of intelligence, or any inference of disloyalty to the United States, according to the FBI’s Comey. That’s a big reason why she wasn’t charged.

“In looking back at our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” said Comey at his Tuesday press conference.

But wasn’t isn’t the same as couldn’t. Under federal law, it’s illegal to handle classified information with “gross negligence.” And Comey himself said that Clinton acted with “extreme carelessness.” Aren’t those phrases descriptions of pretty much the same thing?

They might be. However, Comey also emphasized that an examination of past cases played a large role in the FBI’s decision on Clinton. What that means, according to right-leaning Washington Post pundit Jennifer Rubin, is that the FBI did indeed think Clinton had violated federal law – but they could find no instances of anyone being prosecuted under the “gross negligence” standard. They weren’t about to set a new precedent and blow up US presidential politics in the bargain.

“We actually do require a high level of proof for prosecuting high government officials so as to avoid politicized harassment of public officials,” writes Ms. Rubin. “Call that a double standard of justice, but frankly it’s one with which investigators and prosecutors are very familiar.”

Rubin says this result will not satisfy everyone but might still be judicious. Comey’s description of Clinton’s actions regarding her email server was scathing. Many of her defenses have been exposed as untruths. Voters can now make up their own minds. It is not the fault of the FBI that Clinton’s electoral opponent is someone with even lower public approval ratings.