Why not prosecute Hillary Clinton?

Why did he do it? FBI Director James Comey spent 14 minutes laying out an unassailable case for prosecuting Hillary Clinton for the mishandling of classified material. Then at literally the last minute, he recommended against prosecution.

This is baffling. Under the statute (18 U.S.C. section 793(f)), it’s a felony to mishandle classified information either intentionally or “through gross negligence.” The evidence, as outlined by Comey, is overwhelming.

Clinton either sent or received 110 e-mails in 52 chains containing material that was classified at the time. Eight of these chains contained information that was top secret. A few of the classified e-mails were so marked, contrary to Clinton’s assertion that there was none.

These were stored on a home server that was even less secure than a normal Gmail account. Her communications were quite possibly compromised by hostile powers, thus jeopardizing American national security.

Comey summed up Clinton’s behavior as “extremely careless.” How is that not gross negligence?

Yet Comey let her off the hook, citing lack of intent. But negligence doesn’t require intent. Compromising national secrets is such a grave offense that it requires either intent or negligence.

Lack of intent is, therefore, no defense. But one can question that claim as well. Yes, it is safe to assume that there was no malicious intent to injure the nation. But Clinton clearly intended to set up an unsecured private server. She clearly intended to send those classified e-mails. She clearly received warnings from her own department about the dangers of using a private e-mail account.

She meant to do what she did. And she did it. Intentionally.

So why not pursue a Clinton prosecution? Here is one possibility:

When Chief Justice John Roberts used a tortured, logic-defying argument to uphold Obamacare, he was subjected to similar accusations of bad faith. My view was that, as guardian of the Supreme Court’s public standing, he thought the issue too momentous – and the implications for the country too large – to hinge on a decision of the court. Especially after Bush v. Gore, Roberts wanted to keep the court from overturning the political branches on so monumental a piece of social legislation.

I would suggest that Comey’s thinking, whether conscious or not, was similar: He did not want the FBI director to end up as the arbiter of the 2016 presidential election. And with no guarantee that the prosecution would succeed, moreover.

Imagine that scenario: You knock out of the race the most likely next president – and she ultimately gets acquitted.

I admit I’m giving Comey the benefit of the doubt. But the best way I can reconcile his reputation for integrity with the grating illogic of his Clinton decision is by presuming that he didn’t want to make history.

I don’t endorse his decision. (Nor did I Roberts’.) But I think I understand it.

This story was originally published July 8, 2016 at 5:06 PM with the headline "Why not prosecute Hillary Clinton?."