Democratic presidential candidate Hillary Clinton speaks during a church service at the Christian Cultural Center in the Brooklyn borough of New York, April 3, 2016. (Brendan McDermid/Reuters)

The fix was in.

Despite the sprawl of Justice Department inspector general Michael Horowitz’s 568-page report on the Clinton-emails investigation, there is precious little discussion of the most important issue: The Justice Department and FBI’s rationale for declining to prosecute Hillary Clinton. I believe this is intentional. The inspector general’s message is: “Despite pervasive political bias and investigative irregularities, which I have comprehensively documented, rest assured that nothing too terrible happened here.”


That silver-lining version of this dark spectacle could not have survived a searching analysis of the decision not to indict.

In explaining themselves to the IG, Obama Justice Department and FBI officials contended that the make-or-break issue in the case was whether they could prove mens rea — criminal state of mind. In this instance, that involved former secretary of state Clinton’s knowledge and intent regarding the unauthorized transmission and retention of classified information. Investigators say it dawned on them at a very early stage that they could not. Hence, they urge, their decisions to allow the election calendar to impose a time limit on the investigation, to limit the amount of evidence they considered, to be less than aggressive in obtaining evidence, and to draft an exoneration of Clinton months before interviewing her (and other key witnesses), were entirely reasonable.

Yet their analysis left out the best intent evidence, namely, Clinton’s willful setting up of a private, non-secure server system for all official business.


For his part (as I discussed in Friday’s column), IG Horowitz took the position that it was not his job to question the correctness of the investigators’ legal conclusions and exercise of prosecutorial discretion. He blithely accepted the investigators’ crimped construction of knowledge-and-intent proof, making it a foregone conclusion that he would find their decision-making defensible — much as their adoption of this crimped standard, uncalled for by the applicable law, made it a foregone conclusion that Clinton would not be charged.


A comprehensive critique of the investigators’ approach would have described the evidence they chose not to weigh. That would have been consistent with other parts of the report, in which Horowitz dilates on the minutiae of investigative techniques the agents and prosecutors eschewed.

A detailed description of the grossly improper communications system Clinton established would have illustrated that she knew full well the risk she was running. A large percentage of the secretary of state’s job involves classified matters. We are not talking merely about the exchange of documents marked classified but, more commonly, constant deliberations about sensitive intelligence in classified documents, briefings, and conversations. Clinton’s willful concoction of a home-brew communications network — not a harried official’s occasional, exigent use of private email for official business, but her rogue institution of a private, non-government infrastructure for the systematic conduct of State Department business — made the non-secure transmission and storage of classified information inevitable.

Horowitz’s fleeting conclusion that the decision not to charge Clinton was rational and not necessarily motivated by political considerations hinges on the assumption that the intent evidence truly was as sparse as the FBI and Justice Department described it. Of course the decision to decline prosecution was defensible, if not incontestable, if one accepts that false premise. And Horowitz does not just accept the premise; he treats it as a background assumption, writing as if there’s no other conceivable way to look at the case.


What made Clinton’s conduct outrageous was not that national-defense officials emailed each other frequently. That happens in every government agency that deals with national security. The unique fact here was that Mrs. Clinton willfully set up a system in which those communications would transit through and be retained on a non-secure system, outside the government’s layers of protection. That system was extraordinarily vulnerable to penetration by hostile actors, a fact of which Clinton was undeniably, intimately aware. (See, e.g., Clinton’s banning of State Department employees from using private email for official business due to security concerns; Clinton’s citing of an ambassador’s use of private email for government business in firing him; Clinton’s acknowledgment that she “received a security indoctrination concerning the nature and protection of classified information”; Clinton’s memoir, Hard Choices, in which she vividly recounts the thorough training she received about protecting intelligence from the omnipresent threat of espionage, including instruction to leave communications devices on planes with batteries removed during her frequent foreign travel, as well as the need to use an “opaque tent” or “a blanket over our head” when she and her staff read “sensitive material” outside the secure U.S. government setting.)

It is a classic in the Clinton genre: rules-don’t-apply-to-me sense of privilege causes mess; subordinates blamed for mess; Washington looks the other way.

The IG report indicates that this indisputable evidence of intent and knowledge played little if any part in Justice Department and FBI hand-wringing over whether the evidence of intent and knowledge was sufficient to justify an indictment. Instead, the report recounts that “various witnesses told the OIG that the investigation focused on identifying what classified information transited former Secretary Clinton’s server, who introduced it, and why.”

In other words, obsess over the trees, ignore the forest. The Justice Department and FBI narrowed the lens to each individual instance of classified information passing through the home-brew server, and essentially asked, “Did the official responsible for the specific transmission know the specific information was classified, and did the official intend to transmit classified information — or, at least, was the official so grossly irresponsible in doing so that bad intent could be inferred?”

With that as the investigators’ focus, the IG uncritically reports that no one was charged because:

(1) classified information exchanged in unclassified emails was not clearly or properly marked, and (2) State Department staff introducing classified information into emails made an effort to “talk around” it.

Now, let’s put aside for the moment that (1) people with security clearances know that whether information is marked classified is irrelevant; and (2) when people “talk around” information (an obtuse term for speaking in elliptical or coded fashion about something in order to avoid stating it directly and unambiguously), prosecutors usually regard this as valuable consciousness-of-guilt evidence (people only “talk around” things when they know they shouldn’t be talking about those things at all).

The Obama Justice Department and FBI spin on intent takes no account of the 800-pound gorilla in the room: The only reason officials were put in this position of compromising intelligence was that their boss, Clinton, established an improper communications network. And, again, she perfectly well understood that this was a monumental security breach.


It was not just a matter of whether any single transmission was an intentional flouting of the rules. It was, more significantly, a matter of erecting a renegade network for the systematic conduct of the State Department’s most sensitive work — including communications with the president and other top national-security and foreign-policy officials.


And observe how perverse this is: The Justice Department and FBI’s crimped construction of intent and knowledge enabled Clinton — the person singularly responsible for creating the problem — to escape liability on the ground she could not be held responsible for poor decisions by her staff. Investigators reasoned that the secretary of state was one of the nation’s highest government officials, who was more often than not receiving, not sending, sensitive information, and who was inundated by so much information that she had no choice but to rely on underlings to make judgments about what information could safely be sent to her.

It is a classic in the Clinton genre: rules-don’t-apply-to-me sense of privilege causes mess; subordinates blamed for mess; Washington looks the other way. If the FBI thought it was tremendously important that Clinton was on the receiving end of most (but not all) classified emails (inference: it was not her fault that people who should have known better sent her secret intelligence), how could it not have been even more important that Clinton imposed a non-secure, non-government server on her subordinates’ ability to communicate with her?

Remarkably, even blinding themselves to critical evidence was not enough to bury the case. In order to conclude that there was no prosecutable offense, the Obama Justice Department and FBI still had to rewrite the applicable statute (the Espionage Act, codified in Section 793 of the federal penal code). That’s because, for all the supposed obsession about whether investigators had enough evidence of criminal intent, the law does not actually require such evidence — if one is an official who has been schooled in the handling of national defense secrets, gross negligence will do.

The IG obligingly confines this aspect of his perfunctory assessment to a footnote (number 124):

Even though Section 793(f)(1) does not require intent, prosecutors told us that the Department has interpreted the provision to require that the person accused of having removed or delivered classified information in violation of this provision possess knowledge that the information is classified. In addition, based on the legislative history of Section 793(f)(1), the prosecutors determined that conduct must be “so gross as to almost suggest deliberate intention,” be “criminally reckless,” or fall “just a little short of willful” to meet the “gross negligence” standard.

In other words, the Justice Department added proof elements that are not in the statute. The Espionage Act literally says that if you are a government official who has been entrusted with sensitive information, you are guilty if you either willfully cause its transmission to an unauthorized person or place (Section 793(d)), or are grossly negligent in permitting it to be removed from its proper custody, transmitted to an unauthorized person, or lost, stolen, or abstracted (Section 793(f)(1)).

What could be more gross, reckless, and willful than imposing a non-secure private email system on the communications of the government’s highest-ranking national-security officials?

Notice, to establish guilt, the law does not require proof that the official had knowledge of every individual bit of classified information that was transmitted. If the government official establishes a blatantly unauthorized, absurdly non-secure system for government communications among officials who have top-level national-security duties, a rational jury could surely find the willful transmission of classified information to unauthorized persons or locations.

And if the jury had doubt about that — notwithstanding the thousands of emails containing classified information on Clinton’s system — gross negligence is the fall-back position. The official is also guilty if, by her recklessness, she enabled to exposure of classified information in an unprotected setting, enabled its transmission to unauthorized people, or created a situation that directly caused its compromise, theft, or loss. On that last score, Fox News’s Catherine Herridge reports that two congressional committees have found that “foreign actors obtained access” to Clinton’s emails.

There is nothing in the statute that inflates “gross negligence” into a requirement that infractions be “so gross as to almost suggest deliberate intention,” be “criminally reckless,” or fall “just a little short of willful.” But even if there were, what could be more gross, reckless, and willful than imposing a non-secure private email system on the communications of the government’s highest-ranking national-security officials?


Yet that is the aspect of Mrs. Clinton’s conduct that the Obama Justice Department and FBI decided not to factor into their consideration of intent evidence. And apparently, the IG had no problem with that.


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