No Further Questions?

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FBI director James Comey doesn’t recommend charges be filed over Hillary Clinton’s use of E-mail on unsecured personal servers, but in light of his criticisms of the former Secretary of State, he’s going to have a heck of a time explaining why not. (Photo Credit: Andrew Harrer/Bloomberg)

In the Season 6 finale of Game of Thrones—and yes, this contains spoilers, because if there’s one show you need to watch and not get behind on, it’s this one, so I have no qualms about spoiling it for you; I mean, for Christ’s sake, people stop watching Internet porn while it airs—Cersei Lannister looks to be in a difficult spot. She has been denied a trial by combat—with a gigantic man nicknamed “The Mountain” in her corner, mind you—and faces a hearing in front of the High Sparrow and, presumably, the gods, regarding a litany of alleged offenses, which we as viewers know largely to be true. So, after seasons of manipulating and scheming, it would seem as if Cersei is set to finally receive her comeuppance. We see her staring out the window from her lofty perch, imagining she might be simply counting down the moments to her grim fate, or perhaps finally showing a shred of remorse for her misdeeds and the general carnage she has wrought.

Eh, not so much. Like any true powerful villain, Cersei Lannister has an ace up her sleeve, or rather, the ultimate trump card in the form of barrels and barrels of Wildfire, an explosive substance hidden in a cache under the Sept of Baelor and thus conveniently located perilously close to where she is set to stand trial. Such that instead of actually facing responsibility for her actions, she instead orchestrates a way to detonate that Wildfire, blow up the Sept, and not only avoid any such consequences, but in one fell swoop, take out her major enemies within King’s Landing, namely that of the High Sparrow himself and of Margaery Tyrell, her chief rival in terms of power over the throne and over her son, Tommen, king of the realm and husband to Margaery. Well played, Cersei. Except for the fact Tommen, either so grief-stricken at the loss of his beloved, so fully aware now that he has been a puppet since he started wearing the crown, or both, that he decides the best course of action is to hurl himself out of the closest available window, thereby fulfilling the prophecy long ago told to Cersei that all her kids would die. Um, take the good with the bad, eh? This particular chapter of the Cersei Lannister ends with the blonde puppet-master herself now seated atop the Iron Throne as ruler of the Seven Kingdoms. I mean, she pretty much has won the post by default, but regardless, there she is—hear her roar.

Why do I bring up Game of Thrones in a blog about politics, social issues and other topics related to current events? Because I imagine a lot of people, reacting to news that the FBI is not recommending that the Department of Justice levy charges against Hillary Clinton and her aides in her ongoing scandal about her use of a private E-mail server to respond to classified matters of state, feel about the same way regarding the twist of expectations. As with Cersei Lannister’s apparent ability to stack the deck in her favor and otherwise maneuver out of harm’s way, Hillary, faced with not one but two high-profile investigations (let’s not all of a sudden forget the recent to-do about her culpability in the attack on Benghazi), looks to be in the clear on both counts, at least in terms of criminal liability. And while Hillary may not be nearly as conniving as Cersei, that critics see a pattern of deception and lies without any legal repercussions which fits a Clintonian narrative that began with Bill’s own ethical and moral flexibility, shall we say, while in the Oval Office, has many observers convinced that both she and Bill play by a different set of rules than the ones you and I do. For all the talk of a “rigged” economy and political system this election cycle, Hillary Clinton’s “great escape” can be seen as a prime example.

Before we get too ahead of ourselves, let’s step back a bit and revisit how the news broke. On Tuesday, FBI director James Comey spoke publicly to say that there was no evidence that Clinton intentionally transmitted or willfully handled classified information, and as such, per the Bureau’s judgment, “no reasonable prosecutor would bring such a case.” Hillary’s top three aides—Huma Abedin, Cheryl Mills, and Jake Sullivan—also appear to have been cleared of wrongdoing. The transcript of Comey’s statement can be found here.

James Comey’s statement explains much about the painstaking process used to assess whether or not Hillary Clinton was guilty on two fronts: a felony count of mishandling classified information either intentionally or in a grossly negligent way, and a misdemeanor count of knowingly removing classified information from appropriate systems/storage facilities. While ultimately the Federal Bureau of Investigation claims to not have clear evidence of malfeasance on either count, Comey’s remarks are notable for their commentary on Hillary’s handling of the situation, as well as the notion they refute prior statements made by the former Secretary of State regarding specific actions during her tenure and as part of the FBI’s investigation. Gregory Krieg of CNN, in fact, highlighted the seven most damning lines on Hillary Clinton within James Comey’s speech, which I will enumerate with my own notes:

  1. “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.” While only 110 messages in 52 chains of the 30,000 messages analyzed by the FBI are reported to have contained classified information at the time of their transmission, this nonetheless refutes Clinton’s assertion than none of the E-mails were classified at they were received or sent. Ms. Clinton, your nose just grew a little.
  2. “There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those with whom she was corresponding about those matters, should have known that an unclassified system was no place for that conversation.” Here we go with the whole “reasonable” person idea. We’ve already brought up what a “reasonable” prosecutor should or shouldn’t do, and now we have what a reasonable Cabinet member should do. Bear in mind Hillary isn’t the only one who has been found to have erred in this way, but if we’re trying each case on its merits, others’ lack of adherence to procedure shouldn’t have a bearing here.
  3. “None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers not even supported by full-time security staff, like those found at agencies and departments of the United States government—or even with a commercial email service like Gmail.” Yeesh. You know, as a government unit charged with the sanctity of sensitive information, that when your level of security is being compared to that of Google’s, you’re doing something wrong.
  4. “Only a very small number of the emails containing classified information bore markings indicating the presence of classified information. But 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.” This sentiment is particularly intriguing for two reasons: 1) even if the percentage is small of messages containing classified info (less than 1%), according to this argument, the absolute number carries more weight, and 2) no matter whether or not a message says “classified” or not, discerning minds should know better. Should.
  5. “While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified email systems in particular, was generally lacking in the kind of care for classified information that is found elsewhere in the government.” Cybersecurity is a serious issue these days, such that the State Department’s evidently cavalier attitude toward these matters does not inspire confidence in the agency as a whole—nor does it speak highly to the tone set at the top by the person in charge.
  6. “We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent.” OK, this definitely doesn’t inspire confidence. In fact, it’s downright scary that classified information was accessed in this way, and while there is a mitigating factor in terms of the zeal with which hackers may pursue access, this doesn’t change the idea that E-mail security should have been a top priority under Clinton’s watch.
  7. “She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.” See also #6. On a good intelligence day, lone wolf and splinter group terrorist attacks are still able to occur, such that “hostile” adversaries really don’t need the help. For someone who prospectively would have the ultimate responsibility of keeping America safe as Commander in Chief, this does not speak well of Hillary’s leadership abilities.

It should be noted that just because the FBI doesn’t recommend an indictment, this doesn’t mean that the Department of Justice can’t decide to still follow through with criminal charges of some form. Technically, then, Hillary Clinton is not completely out of the water. Then again, Hillary is technically not the Democratic Party nominee until party delegates make their official declaration at the Democratic National Convention. But, yeah, as much as I, H.A. Goodman, or any number of Bernie Sanders supporters might wish it, HRC is almost certainly not getting indicted, and almost certainly will be the Democratic Party nominee.

With that business aside, the reaction of many to the Bureau’s findings is characterized by disappointment, if not downright anger. Of course, Hillary Clinton could be caught in the act of littering, and people would still be calling for her head. Not to diminish littering, mind you—we only have one Earth, after all—I’m just trying to make a point about the antipathy the woman inspires. Even if objectivity is seemingly in short supply for all things related to Hillary, however, except for her staunchest supporters, the general consensus seems to be that something doesn’t add up in the Case of the Missing E-Mails. For one, it is not especially clear as to how Clinton’s actions, as “extremely careless” as they were, do not qualify as “gross negligence” and therefore do not satisfy the requirements for an indictment. As Julia Edwards of Reuters reports, the answer may have as much to do with legal precedent as much a wholly concrete definition of the term. According to the lawyers surveyed in the piece, without proof of specific intent of Hillary Clinton’s to share sensitive information with people not authorized to see it, under the Espionage Act, there is not much prior incidence of charging individuals along these lines. That is, recklessness does not necessarily equate to negligence. Donald Trump and other Republicans are quick to point to the example of General David Petraeus as being a superficially similar set of circumstances, but as the article and interviewees within highlight, Petraeus admitted to sharing confidential information with Paula Broadwell, his biographer and lover, and only did so after initially lying to the Federal Bureau of Investigation about doing so. There are appreciable differences in these two scenarios.

Then again, as amateur and professional legal analysts might argue, intent does not necessarily need to be present to qualify behavior as negligence. Meanwhile, as more recent testimony from Clinton’s top aides suggests, the former Secretary of State may have been more active in concealing certain evidence than mere carelessness would hint at. One surprising admission on the part of Huma Abedin when deposed was that Hillary Clinton put her daily schedule as Secretary of State in a “burn bag” on more than one occasion. Elsewhere in her deposition, Abedin was questioned on a message sent by Clinton regarding the latter’s demand that there not be “any risk of the personal being accessible” with respect to her E-mail, which may be read as Hillary trying to take normal precautions of safety (as Abedin chose to read it), or may be interpreted as HRC deliberately looking to hide government information. These details are surely no smoking gun, and some might even point to the knowledge that President George W. Bush’s staff burned his schedules, according to Brad Blakeman, Dubya’s former scheduler. And yet, it would be vaguely weird for Hillary Clinton to insist on making sure her printed schedules were unobtainable yet leave the door unlocked, so to speak, with respect to her electronic communications. Intent or no intent, the inconsistency is pretty embarrassing, simply put.

As tends to be the case with Hillary, it is not necessarily an act of explicit malice which defines her “dark side,” if you will, but an attitude or pattern of noncompliance under the premise that certain standards of normal conduct don’t apply, a modus operandi attributable to Bill, as well. The intersection of Mr. and Mrs. Clinton’s troubled legacies came to a head last week when the former just happened to run into the Attorney General Loretta Lynch at Phoenix Airport, and they just happened to talk about nothing pertaining to the investigation the agency Lynch heads has been conducting with respect to Mrs. Clinton, and it totally didn’t dawn on either of them that they shouldn’t be meeting like this. Notably on Bill’s part, as Robert Reich and others have insinuated, it speaks to a sense of entitlement. Granted, Bill and Hillary are not alone in feelings of hubris, so to speak, among the political elite in the United States and elsewhere, but they are hardly models on this dimension. After Slick Willie’s stunt on the tarmac in Arizona, one might venture to say they aren’t particularly careful or smart about it either. Bad optics? Even a blind person would be wont to think something looked fishy with that “chance encounter.”

Hillary Clinton and her supporters have been quick to turn the page following James Comey’s and the FBI’s recommendations not to indict the presumptive Democratic Party nominee, and their calls have been that much louder for Bernie Sanders to call it a campaign and fully get behind Clinton following the news; reportedly, Bernie has even been hearing jeers from other members of Congress growing more and more impatient with the absence of his endorsement. (If they were smart, establishment Democrats would take Sanders seriously in hearing about how to fix a party that has its own trust issues with the public; see also Debbie Wasserman-Schultz, for instance, who sided with Republicans and payday lenders against consumers. But they don’t seem terribly interested in that.) Even if charges are not filed against HRC, however, and even if Bernie Sanders gives that prized endorsement (because an endorsement means that his supporters will automatically jump at the chance to vote for Hillary, since they evidently are mindless drones who hang on Bernie’s every word), Comey’s criticisms are more or less a blueprint for Republican attack ads leading up to the election. Plus, on the heels of fault-finding by the Special Committee on Benghazi, if this is supposed to help the would-be “Madam President” on her perception problem, um, it’s not doing the job. In fact, for all the answers this FBI investigation was intended to provide, any number of questions loom large in the wake of James Comey’s press release.

Speaking of being quick to turn the page, the FBI director, after making his statement, took no questions from the media. It seems only fitting for a case like Hillary Clinton’s use of E-mail while serving as Secretary of Stare, in which adherence to protocol was suspect, and the integrity of evidence is questionable. At best, the findings point to poor judgment on the part of Hillary and her top aides, and that’s before considerations of potential ethics violations or woeful incompetence. Either way, the cloud of suspicion that has hung over Hillary Clinton will, in all probability, not go away anytime soon, and the Federal Bureau of Investigation’s own reputation stands to take a hit in its own right. “Fidelity, bravery, integrity?” Americans are less sure about that right now—myself included.

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