By John Ubaldi
Contributor, In Homeland Security
In a nationally televised press conference on July 5, FBI Director James B. Comey stated that the bureau would not recommend criminal charges against Hillary Clinton on her handling of classified information. This decision has unleashed a political firestorm.
For months, many people speculated that Hillary Clinton would not be charged with any crime, feeling the judicial system is rigged with two tiers. There is one standard for the politically connected and another standard where criminal law applies to everyone else, so they are held accountable for their actions.
This entire presidential election has seen both sides of the political spectrum rebel against the establishment with the rise of Bernie Sanders and Donald Trump. These two candidates champion the belief that the American political system is rigged against their candidacies in favor of the political class.
Americans See a Two-Tiered Justice System
In the past few weeks, it’s easy to understand how voters would have this perception. On June 28th, former President Bill Clinton unleashed a political firestorm when he visited Attorney General Loretta Lynch at a Phoenix airport. At the same time, the Department of Justice was investigating his wife, former Secretary of State Hillary Clinton, over her private use of a server and email while she served as Secretary of State. There is also a possible conflict of interest between the Clinton Foundation and her tenure at the State Department.
On July 1st, during a My Aspen Film Festival interview, Lynch commented on her meeting with the former president and on the ongoing investigation. She stated, “I’ve always said that this matter will be handled by the career people who are independent. They live from administration to administration. Their role is to follow the facts and follow the law and make a determination as to what happened and what those next steps should be.”
Whether everything in her meeting with Bill Clinton was as Lynch stated is highly suspect and hinted at the awkward situation that she was in. Lynch was appointed by President Clinton to serve as the U.S. Attorney for the Eastern District of New York and has a past relationship with the Clintons.
On July 2, the FBI interviewed Hillary Clinton for three and a half hours. Her interview by the FBI was within a few days of Bill Clinton’s meeting with Lynch.
The meeting with Lynch by the former president left many political pundits scratching their heads. They question what Clinton was thinking by meeting with the Attorney General, a top Department of Justice administrator directly connected to the FBI, while his wife was under FBI investigation.
The Clinton-Lynch meeting gave a huge political boost to the Trump campaign. Now that no charges will be filed against Hillary Clinton, it will further give credence to Trump’s assertion that the system is “rigged” in favor of the politically connected.
Obama Comments on Clinton’s FBI Investigation
Since the beginning of the FBI investigation against Hillary Clinton, President Obama has continued to comment that “America’s national security was not in jeopardy,” adding to the fact that he has publicly endorsed her and will campaign with her for the first time.
To further cement the cynicism regarding the investigation, last Thursday the Obama Administration asked a federal court to delay until October 2018 the release of over 14,000 emails sent to Clinton by her aides.
FBI Doesn’t Charge Clinton
The entire investigation by the FBI centered on whether she violated Section 793(f) of the federal penal code (Title 18) in the handling of classified material. Director Comey stated that Hillary Clinton did not intentionally violate the law, but then followed up his remarks with something very different.
In a July 2016 press statement, FBI Director Comey stated: “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 evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
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. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).”
This interpretation by Comey has confused national security legal experts such as Andrew C. McCarthy, a former assistant U.S. attorney for the Southern District of New York who has prosecuted many terror-related cases.
McCarthy penned a National Review article on Comey’s interpretation of the statute. In this article, McCarthy says, “There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18): With lawful access to highly classified information, she acted with gross negligence in removing and causing it to be removed it from its proper place of custody, and she transmitted it and caused it to be transmitted to others not authorized to have it, in patent violation of her trust. Director Comey even conceded that former Secretary Clinton was “extremely careless” and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.”
Different Legal Standards for Military Servicemembers
Americans are so cynical of the legal process. One only has to review the case of Naval Reservist Brian Nishimura, who was prosecuted last year by U.S. attorneys Jean M. Hobler and Lee S. Bickley for inappropriately handling classified material while he was deployed in Afghanistan.
Nishimura downloaded and stored classified material on a personal unclassified device. He carried his device back to the U.S., and, like Clinton, destroyed classified material.
An FBI investigation into his actions found no evidence Nishimura intended to distribute classified material to unauthorized personnel. Unlike Clinton, Nishimura received probation and a fine. He was also told to surrender his security clearance and to never seek a clearance again.
The lack of holding Clinton accountable for her actions adds to the cynicism many in the armed forces feel toward the Clintons. This feeling applies especially to many servicemembers who served in the 1990s under her husband Bill Clinton.
Many officers remember the political firestorm regarding sexual harassment. In order to be promoted, they had to sign statements that they had not been part of any sexual harassment of military personnel.
In 1997, General Joseph Ralston was on the short list to replace retiring Chairman of the Joint Chiefs of Staff, General John Shalikashvili. Revelations later surfaced that he had an adulterous affair in 1984 while he was separated from his wife. The subsequent controversy forced Ralston’s removal from consideration.
Then in 1998, President Clinton was caught up in the Monica Lewinsky scandal. Now, he is a revered political icon. Fast-forward to Hillary Clinton’s email controversy, and many U.S. citizens now view her email scandal as a replication of one standard for the political elite and another standard for everyone else.
Military personnel know that if they had a private server in their home and they used a private email account to conduct all government business without following government standards of information security, they would have been prosecuted long ago.
Unanswered Questions Linger in Clinton’s Email Scandal
The one lingering question which many military personnel ask and Comey never addressed is: How did classified material, including the most sensitive of U.S. secrets, end up on her unclassified personnel system when the systems do not connect with each other?
Comey also did not address the corruption scandal involving the Clinton Foundation and Hillary Clinton’s tenure as Secretary of State.
This whole situation further reinforces the belief by the American people that the entire investigation was tainted from the beginning. The popular feeling is that President Obama is doing everything he can to have Clinton succeed him as the next president, with a complicit, Democratic-run Justice Department protecting Hillary Clinton.
The political fallout will be the true indicator on how the public assesses the FBI’s investigation. The conclusion of this investigation may help or hurt Hillary Clinton’s candidacy for president.
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