Hillary Clinton is not out of the woods yet. Although the Federal Bureau of Investigation (FBI) concluded its investigation into her use of a private email server without recommending criminal charges, the issue is not settled.
There remains a review of the FBI’s investigative file by attorneys in the Justice Department. As I reported in a blog post yesterday, former United States Attorney for the Northern District of Georgia, Sally Q. Yates, finds herself “in the middle of Emailgate.” Yates, essentially is a career, apolitical, nuts and bolts federal prosecutor.
The case now goes to Justice Department attorneys to determine if criminal charges should be brought against Clinton.
FBI Director James Comey did not mince words in characterizing how bad and “careless” Clinton’s behavior was in using multiple private electronic devices at home and when traveling abroad.
According to national security experts, top government officials are advised not to use private devices when traveling abroad because both friendly nations and foes routinely hack into those devices and steal secrets.
Speaking of Clinton and her staff, Comey said:
“there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
Comey said he declined to recommend charges because he did not find an intent on the part of Clinton or her aides to commit a crime.
Whether charges are ultimately filed against Clinton or any of her aides now rests with Sally Yates and her boss, Attorney General Loretta Lynch.
On Friday of last week, Lynch said that she would follow the recommendation of the investigators (FBI) and the attorneys (Deputy United States Attorney General Sally Yates and one other attorney who has been assigned to this case).
Here is where Comey’s finding of facts presents a challenge for Yates and the attorneys reviewing the FBI file. Comey concluded:
“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).”
While Comey did not find a specific intent to commit a crime, he did find what may be defined in the law as “criminal negligence.”
Criminal negligence exist where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. It gets to what a reasonable person in Secretary Clinton’s position would have done.
Comey concluded that Clinton and others “should have known that an unclassified system was no place for that conversation.”
In deciding not to recommend criminal charges Comey said in previous cases the government had prosecuted they were able to prove the specific intent to commit a crime or some hatred of the government. None of those factors are present in this case.
Hillary Clinton and her private email servers are not out of the woods yet. Comey will leave it up to the Justice Department to decide if they will create a precedent and go after government officials for “careless” negligent in performing their duties.
Harold Michael Harvey is an American novelist and essayist, the author of Paper puzzle and Justice in the Round. He can be contacted at haroldmichaelharvey.com.
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