We Now Know Hillary Clinton Should Have Been Indicted … but That Won’t Matter

We Now Know Hillary Clinton Should Have Been Indicted … but That Won’t Matter

REUTERS/Rick Wilking

By any measure, the televised statement from FBI Director James Comey provided a watershed moment in the presidential election. Never before in the agency’s history had it opened a criminal investigation into a major-party nominee, and Comey understood that the results of the probe would put him and the FBI even more at the center of the political circus.

Instead of following a more traditional process of submitting the results of the probe to the Department of Justice and potentially allowing his advice to come through in leaks and spin, Comey decided to take his case directly to the people.

If the moment was a watershed, however, its impact turned out to be an anticlimax. Unfortunately for both sides, Comey’s conclusions turned out to be entirely contradictory. The internal contradictions of the findings and Comey’s decision to recommend no action left more questions than it answered.

Related: If Clinton Wins, Get Ready for Four More Years of GOP Investigations

Comey began with a powerful condemnation of the conduct from Clinton and her team at State. He refuted nearly every public claim made by Hillary Clinton about her use of a private, unauthorized, and unsecure e-mail server system. The refutation worked so well as a point-by-point rebuttal to Clinton’s assertions that media outlets, Donald Trump, and the Republican Party put together video mashups pairing her claims with Comey’s findings. Media fact-checkers had a field day  as well, cementing the conclusion that Clinton had repeatedly lied, especially about transmitting classified information.

Comey also demolished Clinton’s rationalization for using a private server for her communications. On multiple occasions, Clinton insisted that she made the choice for “convenience,” in order to use just one device. In reality, Comey explained, “Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain.”

If the need for simplicity didn’t drive her choices, then the obvious conclusion is that Clinton wanted to hide her communications from Congress and the courts – and succeeded until the House Select Committee on Benghazi uncovered the use of the home-brew servers.

That should have at least made clear the deliberate choice to eschew secured State Department systems, and the failure of Clinton et al to fulfill their explicit duties to protect sensitive data. It seemed that Comey might have concluded that, too, as he read his statement aloud to the press. More than once, Comey asserted that investigators had found evidence that Hillary Clinton and her aides had violated statutes governing the handling of classified information, which would include 18 USC 793 – a statute that does not require intent for a felony prosecution, but only “gross negligence.”

Related: Can Anti-Clinton Anger Unify Republicans (Even if Trump Can’t)?

However, Comey refrained from using that term, instead calling Clinton and her team “extremely careless” in their handling of sensitive information. Having drawn a line so fine that its definition escaped everyone else, and following a damning moral indictment on her actions and dishonesty, Comey announced that he would recommend no further action be taken. “No reasonable prosecutor” would press charges in this case – a point that several former prosecutors, and more than one defendant in an 18 USC 793 case, refuted later.

This decision ultimately left the argument hanging. Comey’s forceful refutation of Clinton’s earlier claims demonstrated that she had corrupted the system and put national security at serious risk in doing so. However, the lack of recommended action allowed Clinton to claim that the matter had been “settled,” and that the country should move on.

And that’s almost certainly what will happen.

Perhaps in earlier cycles, allegations that a national leader had proven at the bare minimum to be “extremely careless” in national-security matters would have ended his or her career. In this case, some wondered whether an indicting non-indictment would bury Clinton’s chances for the presidency. Chris Cillizza at The Washington Post was just one of many commentators to call Comey’s remarks a “wholesale rebuke,” and predict a “devastating” impact. “It’s not the worst outcome (indictment),” he wrote, “but it badly disrupts her attempts to move beyond the email server story as she seeks to unite the party.”

Don’t bet on it. Most of what Comey declared had already been known from earlier releases of information, including the fact that Clinton had personally transmitted highly classified information marked as such at the time. The only real revelation was that the presumed server (singular) turned out to be multiple servers; even the fact that she’d used multiple personal devices came out months earlier. Comey essentially corroborated that Clinton had repeatedly lied, but there has been plenty of evidence for that conclusion already.

Related: FBI’s Comey Makes It Clear: Hillary Clinton Is Above the Law

Short of an indictment, this statement will barely rattle the narratives of the campaign. Even the media outlets that rushed to produce damning fact-checks of Clinton’s statements didn’t bother to ask the deeper questions about what those lies, and the violations of laws and regulations by a Cabinet official said about her character or how she would approach the presidency if elected. It took almost no time for the media to contextualize this into the horse-race dynamic of the election alone – and for the same media to seize on a months-old Donald Trump trope about Saddam Hussein to balance the news cycle of the day.

By the next morning, the news that Republicans had called Comey and Attorney General Loretta Lynch to the House Oversight Committee to answer questions about the probe allowed another horse-race shift in the media. Instead of Hillary Clinton’s corruption, the central question morphed into whether Republicans would “overreach.”

In the end, this corruption and contempt for the rule of law will matter little to voters, even if it should. The values that would have made this scandal disqualifying with or without an indictment have faded, replaced by cynical utilitarianism for one’s own hobbyhorses and an unrelenting obsession with the immediate over the timeless pillars of character and integrity. It’s easy to blame the candidates, or even the media, but all they do is reflect the electorate and the consumer market of both. We have gotten what we deserve.