Why Hillary Clinton Isn’t Getting Indicted

With the announcement today by FBI Director James Comey that no prosecution or indictment of Hillary Clinton would be recommended by the FBI in respect to the partially media manufactured "e-mail scandal," it goes without saying that the GOP and right wing talk radio noise machine immediately laundered into over drive claiming that the system was "rigged."  Naturally, Donald Trump, perhaps the most unfit candidate for the White House in memory, tried to jump on the bandwagon trashing Hillary Clinton, James Comey and all things smacking of the Washington, DC, political establishment.   Such rants and posturing, of course, ignore the realities faced by would be federal prosecutors, including the burden they would of proving the case beyond a reasonable doubt and how Clinton's conduct would stack up against that of some of her predecessors who likewise failed to follow strict compliance wit Department of State requirements.  Why worry about proving the case and prevailing in  any potential prosecution when the chance for demagoguery and dishonestly is so readily at hand.  Here are excerpts from Think Progress:

Tuesday morning, FBI Director James Comey announced that his agency’s investigation into Democratic presidential candidate Hillary Clinton’s handling of a private email server while she was Secretary of State has come to a close. He also added that the FBI will recommend against criminal charges for Secretary Clinton, stating that “no reasonable prosecutor” could determine that charges were warranted here. It’s an announcement that will surprise no one who is familiar with the underlying law and ordinary Justice Department practices in a case such as this one.

Nevertheless, in part because calls for a Clinton indictment were amplified by Republicans at the highest levels, and in part because of what Josh Marshall described as the media-industrial complex’s quest for “wingnut page views,” the idea that Clinton may face criminal charges has lingered for months. Here’s what you need to know about why such charges were never a realistic possibility. 

Clinton, like her two most recent predecessors Colin Powell and Condoleezza Rice, maintained at least two email accounts: one specifically set up to receive classified information and the other for other communications. Clinton’s non-classified email was hosted on a private server (as opposed to Powell’s non-classified email address, which was an AOL account), while the classified email could only be accessed if Clinton complied with a byzantine array of security rules. 

Clinton says that the emails she received at her non-classified address “were not marked classified,” although she acknowledges that “there are disagreements among agencies on what should have been perhaps classified retroactively.” Government officials also confirm that “none of the emails the State Department redacted, or any other emails made public, contained classification markings at the time they were sent.” Although the FBI determined that 110 emails did contain classified information.

This matters because of a legal concept called mens rea. As a general rule, most crimes require prosecutors to prove that an individual acted with a particular state of mind before they can be convicted of a specific crime. Most federal laws dealing with classified information require someone to “knowingly” violate that law in order to sustain a conviction. Thus, Clinton cannot be charged with transmitting or receiving classified information based on that fact alone.

[A]s ABC News Legal Analyst Dan Abrams explains, several key words in this provision also weigh against charging Clinton. For one thing, a 1941 Supreme Court decision interprets the phrase “relating to the national defense” to require “‘intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.’ This requires those prosecuted to have acted in bad faith.” That’s a high bar — there’s no apparent evidence that Clinton had reason to believe that her use of a private server would cause information to be obtained that advantaged a foreign nation or that would have caused injury to the United States.

Additionally, the phrase “gross negligence” also requires prosecutors to clear a high bar — “a lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety.”

Indeed, as Comey noted in his announcement, the FBI could not “find a case that would support bringing criminal charges on these facts” as “all the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an interference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”   “We do not see those things here,” he added.

Setting aside the bare language of the law, there’s also a very important practical reason why officials in Clinton’s position are not typically indicted. The security applied to classified email systems is simply absurd. . . . ndicting Clinton would require the Justice Department to apply a legal standard that would endanger countless officials throughout the government, and that would make it impossible for many government offices to function effectively.