Thursday, July 14, 2016

Hillary Clinton's Extreme Recklessness with National Security: A Rigged Justice Department or Failing Short of Gross Negligence?

In July, 2016, the FBI came to the conclusion that while Hillary Clinton was serving as U.S. Secretary of State, she risked classified information by using private computer servers for email and other purposes. The FBI’s director explicitly stated that she had been extremely reckless. In legal terms, that means gross negligence. At the time, a 99-year-old statute whereby gross negligence is sufficient for a fine or imprisonment of up to ten years was still on the books. Whether or not the person knew the actions were wrong is not relevant to the statute, and thus the enforcement.  So it was perplexing to a significant number of Americans—including prosecutors and other lawyers—that the FBI director did not recommend prosecution. Crucially, extremely reckless is the same as gross negligence in legal terms.
The FBI director pointed out that the statute had not been used as a basis for prosecution, and therefore it was not fitting to apply the statute in 2016. Does this reasoning mean that just because nobody has been prosecuted for lynching black Americans since, say, 1916, a person who lynches a black man in 2016 should not be prosecuted? I have simply increased the seriousness of the crime, but is being extremely reckless with national security not also a serious crime?  Is the American legal system prepared to say that any statute not used in a prosecution is therefore unenforceable?  Only statutes already utilized could be used to prosecute people. No legal basis exists for such a view, and yet the FBI director got away with it.
That Hillary Clinton’s husband, former President Bill Clinton, boarded the Attorney General’s jet on the tarmac at Phoenix’s airport to have a discussion with Loretta Lynch presumably about grandchildren just a week before the FBI director’s announcement opens the door to the possibility that the president who had appointed Lynch to a lower office made a deal so his wife—who was running for president at the time—would not be prosecuted. The FBI’s extremely reckless logic adds more support to that possibility. In short, where there’s smoke, there’s usually fire.
At the very least, the appearance of corruption is noxious and thus unacceptable. CPA firms look not only at material conflicts of interest, but also the appearance thereof as being problematic. Such conflicts are rather obvious and they are avoidable. Perhaps Bill and Hillary Clinton were desperate to make a deal—appearance or not—because they knew she had been reckless in going against the State Department’s policy; even freshmen congressmen know not to put classified material on private email servers. Hillary engaged in such traffic even when she was on hostile soil, such as China and Russia.
What amazes me from this case is just how easy it was for the FBI recommend no prosecution—given the extremely bad rationale rationally speaking—and how easy had been for Bill Clinton and Loretta Lynch to get away with the 30-minute discussion on her plane “on the grandchildren.” That the American people take all this at face value quivers my faith in American representative democracy. Put another way, if the players could get away with corruption and, at the very least, incompetence in such a blatant case, other players could get the message that the American system of justice is no match for corrupt deals made by powerful people. Are the people really so naïve, or are we simply apathetic? Either way, the message from this case is not good regarding accountability. 

Note: This essay is not meant to convey an opinion on the 2016 U.S. Presidential election, and more specifically on Hillary Clinton as a candidate. Rather, the question is whether an inter-institutional conflict of interest exists between the White House and the U.S. Department of Justice (i.e., whether that department is immune from political pressure).