Nominating a Presidential Candidate Under Active FBI Investigation Is An Incredibly Risky Gamble

The 2016 election has many bizarre aspects, but surely one of the most bizarre is the fact that one of the main presidential candidates is under active investigation by the FBI, and that this is somehow being treated as unimportant or inconsequential.

Of course, everyone knows that Hillary Clinton has a pending FBI investigation, and everyone has a vague sense that it is continuing to grow rather than disappear, and that theoretically the possible consequences include indictment and prosecution. But for some reason a major investigation concerning a presidential candidate isn’t being widely treated as the potentially catastrophic scandal and electability risk that it is. Nominating a presidential candidate who could potentially be subject to prosecution under the Espionage Act should seem like an insane gamble for a party to take. Why, then, isn’t it being taken more seriously?

There’s no mystery as to the basic facts, which by now are wearingly familiar to all. When Hillary Clinton was Secretary of State, she stored much of her email on a private server, free of ordinary oversight and without the government’s security protocols in place. While Clinton insisted none of these unsecured emails contained classified information, according to a Washington Post investigation “more than 100 of the emails that contained classified information were sent by Mrs Clinton herself using her private server.”

The government takes its classification regime extremely seriously, and the FBI has confirmed that it is conducting a review of unspecified scope as part of “ongoing law enforcement efforts.” And the FBI investigation is only “foremost among a half-dozen inquiries and legal proceedings” examining the matter. In addition to the FBI’s investigation, “there are continuing inquiries into Mrs. Clinton’s emails by the inspector general of the State Department, the inspector general of the intelligence agencies, the State Department’s Bureau of Diplomatic Security and the House Select Committee on Benghazi.”

Now, the IT specialist who set up Clinton’s server has struck a deal with the Justice Department for immunity from prosecution, and has been (for what it’s worth) rumored to be a “devastating witness.” Nobody knows what the specialist is revealing, but this sort of development certainly isn’t the sign of an investigation wrapping up. The Hill has quoted former FBI officials saying that “a decision on whether to file charges against Clinton or her top aides could come later this year.”

PolitFact has insisted that none of this actually amounts to an “investigation of Clinton” and that calling it such is a half-truth. But they conceded that “Clinton’s actions are clearly front-and-center in an FBI investigation,” and that the details of the investigation remain too opaque to actually conclude anything concrete in Clinton’s favor. And while PolitiFact implies that the case remains a “security referral” without criminal implications, The New York Times has since reported that while the issue began as a security inquiry, “multiple law enforcement officials said the matter quickly became an investigation into whether anyone had committed a crime in handling classified information.”

Plenty of people have insisted Clinton’s conduct, while unwise, doesn’t rise to the level of the criminal. In the Washington Post, Ruth Marcus said that while it was possible to construct a theory as to why Clinton’s conduct was illegal, it would require such a stretch that no responsible prosecutor would bring such a charge. Marcus says that those who compare the case to other “mishandling of classified information” prosecutions such as that of David Petraeus miss a crucial fact: in the other instances, the classified information was handed over to someone unauthorized to view it, or treated with far greater negligence (by being left in a dumpster, for instance).

But this is not true. Examine, for instance, the case of Bryan Nishimura, a Naval reservist who deployed during Afghanistan during 2007 and 2008. Nishimura was prosecuted when he stored classified information on unsecured devices. In its press release announcing Nishimura’s plea agreement, the FBI summarized the facts as follows:

In his role as a Regional Engineer for the U.S. military in Afghanistan, Nishimura had access to classified briefings and digital records that could only be retained and viewed on authorized government computers. Nishimura, however, caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media. He carried such classified materials on his unauthorized media when he traveled off-base in Afghanistan and, ultimately, carried those materials back to the United States at the end of his deployment. In the United States, Nishimura continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system… The investigation did not reveal evidence that Nishimura intended to distribute classified information to unauthorized personnel.

See if you can find any meaningful distinction between Nishimura’s conduct and Clinton’s. Just as with Clinton, nobody alleges that the action caused harm, or that Nishimura used it for any nefarious purposes. Just as with Clinton, nobody alleges that Nishimura disclosed or intended to disclose the information to any unauthorized person. The only issue here is that Nishimura kept classified materials on unauthorized media, precisely the same thing Clinton is alleged to have done.

The same is true in the case of John Deutch, a CIA officer whose laptops were found to contain classified material. Deutch had agreed to plead to a misdemeanor offense of mishandling classified documents when he was pardoned by Bill Clinton. And then there was the case of Wen Ho Lee, relentlessly hounded by the government and put in solitary confinement for nine months on suspicion of spying after downloading classified information, was a particularly heinous low point. And as Glenn Greenwald has documented, there are plenty of other examples to choose from:

NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such)… Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.

It’s strange, then, for Ruth Marcus (and the others who insist that Clinton’s conduct was lawful) to dwell on the differences between Clinton’s behavior and David Petraeus’s, while failing to mention any relevant differences between Clinton’s case and that of Nishimura or Deutch.

Clinton’s own defenses haven’t been particularly reassuring, either. Initially, Clinton’s campaign insisted that none of the material sent on the unsecured server was classified: “Hillary didn’t send any classified materials over email: Hillary only used her personal account for unclassified email.” Then, the Clinton campaign admitted that classified information had been sent, but insisted that the initial statement was still simultaneously true because none of the material was “marked” classified “at the time.” That defense was laughable on its face, because everyone at every level of the State Department is trained to recognize what sort of information is presumptively classified and should be handled accordingly. Of all people, the highly experienced Hillary Clinton would be the last to be oblivious to basic departmental protocol.

But once it became difficult to deny that classified information was sent, Clinton’s team shifted their stance. They began calling the situation “overclassification run amok,” saying that “our system for determining what ought to be classified is broken,” and her defenders said the Espionage Act was “antiquated.” Note, though, how different this is from saying that the material wasn’t classified. It is, in fact, an admission that the material was classified. It essentially concedes that Clinton may well have committed a prosecutable offense. This is not a defense that says the law was not violated, but that the law is unfair.

Unfortunately for Clinton, protesting that the classification laws should be different doesn’t mean that they are different. The fact that the Clinton campaign are casting around the word “overclassification” should be deeply alarming, because talking about overclassification is the last refuge of someone who knows that by the letter of the law, they have mishandled classified information.

Sometimes the Clinton campaign has even given up on arguing the facts, and begun impugning the motives of the investigators. The Intelligence Community inspector general recently announced that several Clinton emails were found to be “Special Access Programs,” a classification above Top Secret reserved for “exceptional” circumstances in which a very limited number of people should have access. This meant that “the secret information on Hillary Clinton’s personal email was more highly classified than previously understood.” But rather than explaining why this was false, the campaign insisted that “the intelligence community inspector general is not operating in good faith” and that the inspector general was colluding with Republicans.

At the very least, then, it’s clear that there is potential lawbreaking here, something that logically should present a gigantic red flag for a party trying to select a nominee. As The New Yorker‘s Ryan Lizza put it understatedly, “however these [investigations] turn out, it is unusual for a presumptive nominee and some of her current and former aides to be under investigation by the F.B.I.” If there is an active investigation into a crime that the nominee could very well be convicted of, and that nominee’s own reassurances seem cagey and evasive, running that person in a general election would seem like a gamble bordering on insanity.

The real curious thing about the whole affair, however, is that nobody seems to believe there’s actually much risk to the campaign. Why is that? If the evidence seems like it may well be enough to make out a case (even if there is a plausible defense theory), shouldn’t this be concerning? Why isn’t it a major topic in the nominating contest?

Lizza believes it’s because Bernie Sanders has downplayed the issue and refused to campaign on it. Lizza says that many Democrats are alarmed that the issue is not being taken more seriously. He quotes a senior Democratic consultant saying:

The person that the White House cleared the field for, and that everyone has fallen in line for, has three federal investigations going on… The guy who set up the system for her took the Fifth. You’re not supposed to read anything into that, but please. It’s the elephant in the room, and Sanders took it off the table.

But perhaps the issue goes beyond Sanders’s refusal to make an issue of the investigations. Part of the scandal’s seeming negligibility has to simply be that nobody believes there is any chance of the Obama administration prosecuting Hillary Clinton. For a Democratic president to tank the prospects of the Democratic nominee by prosecuting her over something that appears both harmless and trivial seems unthinkable. Regardless of all questions about what the law is and whether she violated it, a criminal prosecution seems beyond the realm of reasonable possibility.

And it very well may be. It’s certainly difficult to imagine an indictment coming down, and Clinton even having to plead to some tiny misdemeanor. It’s only because it seems so unthinkable that Clinton can get away with answering the question “Will you drop out if indicted?” by saying “My goodness. That is not going to happen. I’m not even answering that question.”

But the very fact that this is unimaginable implies something troubling: people have an entirely different collective understanding of what justice looks like for those with political power and those without it, and that difference is simply accepted as natural.

Recall Bryan Nishimura’s case. The facts are the same. Yet somehow Nishimura’s prosecution raises no eyebrows, seems like business-as-usual for the FBI. If prosecuting Clinton is not just unlikely but inconceivable, but prosecuting Nishimura seems routine (or at least not unlikely, even if unjust), then there’s an implicit double standard at play. Even if we believe there are relevant differences in the facts, the level of difference in our expectations implies a passive acceptance of an openly inconsistent set of laws. The central idea behind the “rule of law” is that all are treated equally before the law, but here we have no expectation that the Democratic presidential nominee will be subject to the same strict standard as a minor agency functionary.

In fact, for any other individual than Hillary Clinton, one would be foolish to doubt the Obama Administration’s willingness to prosecute. The administration has prosecuted individuals under the Espionage Act more than every previous presidential administration combined. It has waged a relentless war on whistleblowers, and its promise to be “the most transparent administration ever” has become an ironic Orwellian joke. If anyone doesn’t view the Espionage Act as “antiquated,” it’s the Obama Justice Department. Chelsea Manning sits in prison because of the Espionage Act under Obama. Journalists worry about their freedom to report because of the Espionage Act under Obama.

Hillary Clinton knows all this, of course, because Clinton was part of that very culture of secrecy. During her time as Secretary of State, when the Wikileaks documents were revealed, an anonymous official in the Clinton state department threatened that students seeking public service jobs could have their careers jeopardized for so much as tweeting about the Wikileaks documents, even though they were freely available all over the internet. The official warned that this would “call into question your ability to deal with confidential information.” (Clinton called the leak itself “an attack on the international community.”)

Now, of course, Clinton’s perspective has completely altered, and the email scandal has got the former Secretary of State talking like Julian Assange. So for Clinton’s supporters the Espionage Act goes from an essential tool for preserving national security to an antiquated, overreaching infringement on both liberty and common sense.

It’s worth pointing out that is an antiquated, overreaching infringement on both liberty and common sense. Even the often pro-government Brookings Institution fellow Benjamin Wittes has called the act “hopelessly broad” and pointed out the terrifying fact “that from a journalistic point of view looks like pretty normal journalistic activity could be considered aiding and abetting a violation of the Espionage Act.”

So everything the Clinton campaign now says about the excessive secrecy of the national security state completely true. The present system of classification is paranoid, out-of-control, and Kafkaesque. According to Nieman Reports:

The universe of classified information includes not only genuine national security secrets, such as confidential intelligence sources or advanced military technologies, but an endless supply of mundane bureaucratic trivia, such as 50-year-old intelligence budget figures, as well as the occasional crime or cover-up.

Though there may be important security tradeoffs, every piece of information that remains classified reduces government accountability, and far, far too much information is classified. As it stands now, crimes committed by the government can remain undiscovered for years, locked away behind the strict, totally irrational wall of classification.

So nobody should care about the damned emails. Clinton’s misdeed should be an internal agency matter, with procedures fixed in the future. In terms of its significance to human wellbeing, the issue is just as trivial as Bernie Sanders says it is. Clinton is right about overclassification, and it’s a just a shame she only became interested in the problem when it began to threaten her personally.

Yet now we have created a legal structure in which the mishandling of totally harmless classified information is treated akin to terrorism, unless Clinton is treated as being at serious risk of prosecution, we essentially acknowledge the nonexistence of the rule of law. There are two possibilities here: either we trust the Obama administration to treat this case like any other, in which case (given the government’s paranoia, liberal deployment of the Espionage Act, and history of other excessive prosecutions) Clinton has a massive looming liability and nominating her would be a massive gamble. Or we believe that, while the government will eagerly make mountains out of molehills for minor Naval reservists, Hillary Clinton will receive the benefit of the doubt due to the political necessity of ensuring she becomes the Democratic nominee and keeps Trump out of the White House. And that would require us to accept some very troubling conclusions about the politicized nature of the American justice system.

To prosecute Clinton would be absurd, of course. As Ruth Marcus says, it would require a prosecutor to actively desire to press the law to its limits, rather than to apply it with reason, fairness, and good judgment. But since nobody else receives reasonable prosecutions, it’s unclear why Clinton should. If prosecuting Clinton would be absurd, it would be no more absurd than the rest of the Obama administration’s approach to the protection of classified information.

In a world where we expected the law to be equally applied to all, Democrats should be panicking right now over the status of the investigations against Clinton and the Clinton campaign’s troubling responses. The Washington Post has documented numerous misstatements and evasions made by Clinton around the emails, concluding that “it appears Clinton often used highly technical language to obscure the salient fact that her private email setup was highly unusual and flouted existing regulations.” All of this should be making Democrats panic, and sending them scrambling to find a non-indictable nominee.

But that’s not happening, for a very obvious reason. Nobody seriously believes the law would be applied to Clinton with the same pitiless irrationality as it was to Bryan Nishimura. Yet that leaves us with a stark choice: either treat the Clinton scandal as troubling and a major campaign issue, or acknowledge that we are entrusting an oligarchical justice system to make the issue go away for Clinton in a way it wouldn’t for anyone else. Neither choice should leave Democrats comfortable.