As I sat in my law office watching CNN’s coverage of FBI Director James Comey’s statement, where he outlined his department’s much-awaited decision regarding the Hillary Clinton email scandal and all but concluded that Clinton had broken the law but would not be indicted, his words merely confirmed what I have always known as a former prosecutor and a current criminal defense attorney: Our nation maintains a separate and unequal criminal justice system that is stratified according to wealth and power.
Now, in full disclosure, before you think that this is a Clinton-bashing article, I endorsed Clinton for president last month after it was clear that my preferred candidate, Sen. Bernie Sanders (Vt.), had been defeated in the Democratic primary. As such, my analysis of this issue has less to a with my personal politics and more to do with concerns I share with millions of Americans that the justice system is entirely corrupt.
Earlier this year in this space, I chronicled the history of presidential orders regarding classified information, a practice first begun under President Franklin Roosevelt and continued by each of his successors. In 2009, President Obama issued Executive Order 13526, one that proscribed penalties for mishandling such information. To be clear, there is no dispute that then-Secretary of State Clinton acknowledged, by signing a nondisclosure agreement, the rules governing the knowing or negligent mishandling of classified information. Nevertheless, Clinton used a private email account and home-brew server located in her New York state home to conduct official business while serving as secretary of State.
With Comey indicating that over 100 emails analyzed by his agents contained some level of classified information, and with him further indicating that Clinton used her private servers in areas where “hostile actors” could have easily accessed her account, as a former prosecutor, I would think that a prosecution should be forthcoming; such would be the logical conclusion considering the facts that Clinton agreed not to break the law and that she broke the law either knowingly or negligently.
Comey’s comments constitute a form of legal sophistry in that prosecutors did not need to prove that Clinton intended to commit a criminal act. Comey and staunch Clinton apologists keep providing cover by adding that element — intent — that simply is not needed. Indeed, under federal and state laws, negligence roughly means an “indifference” or careless attitude toward the proscribed conduct and with Comey calling the conduct “extremely careless,” an argument can be made that Clinton was grossly negligent in her acts.