“Equality before the law.”
A beautiful sentiment. It speaks to a development in thought where power was not derived from heavenly mandate or martial prowess, but rather the consent of those citizens governed. It embodies the ideal where both the meek and the powerful are held to account, not by status, but by their actions.
This week, America failed to live up to that high calling.
The Hillary Clinton email scandal was never going to be simple. When federal agents are investigating someone who has a strong chance to become the next president of the United States, they will tread very carefully. That is especially true when the suspect’s reputation, according to former Secret Service personnel, is both vindictive and abusive.
And their investigation was colored from the outset; some Republicans muddied the water with over-the-top attacks on Clinton. Merely having a private email server represented poor judgement, but was not — by itself — criminal. It led to reflexive defense of Clinton from those on the left, such as Bernie Sanders’ dismissal of the matter with his famous quote that he is “sick and tired of hearing about your damn emails!”
To paraphase many of his supporters today: oops.
The reason the email scandal dogged Hillary Clinton is because it plays into all the worst perceptions about her. Aloof, amoral, and dedicated to winning uber alles, it demonstrated a lack of regard for the normal operations of government. A private server wasn’t set up for convenience, but rather to give her unfettered control over her email account without fear of the “vast right wing conspiracy.” And when it became time for her to comply with the law and provide official records to the National Archives? She sent around 30,000 emails in, declaring she met her obligation.
But, as the FBI learned, she deleted over 31,000 emails she deemed not relevant. After the federal forensics team got through with her server, they found several thousand of those deleted emails included government business. Fortunately for Clinton, destruction of government records — regardless of intent — is not criminal.
As the investigation continued, Clinton’s story around classified information unravelled. First, she claimed she never sent classified material over unclassified systems. It became clear early on that statement was “extremely careless.” Then, the story evolved, saying she never sent marked classified material. The FBI found that to be false.
Since Tuesday’s press conference, there has been a lot of teeth gnashing. Arguments have been put forward that the alleged classified information is merely bureaucratic government bloat, where functionaries want to make everything secret. That is a legitimate problem, but a red herring to the situation at hand.
The simple fact is Clinton received classified information via email. It was marked, although that qualifier is immaterial under the non-disclosure agreement she agreed to. She sent it on through unsecure means. And she stored it on private, unsecured servers. She had two options at that point: one, report the information as “spilled” and trigger the processes in place for just such a contingency. Or two, use her authority as secretary of state to declassify the information then and there.
She did nothing. And, tellingly, neither John Kerry or Barack Obama have declassified the information at issue. If they had, those emails would be released under the countless Freedom of Information Act requests pending with the Department of State. So the powers-which-are believe the information needs continued protection, a determination at odds with Hillary’s judgement.
The FBI, through its own words, believes Hillary Clinton was “extremely careless” in her actions. Where the line between that and “gross negligence” falls is anyone’s guess. Normally, courts make that determination. But instead of “equality before the law,” the FBI has decided Clinton’s failure should be tried in the court of public opinion.
Our last hope? The Department of Justice recognizing her acts were the same as Gen. David Petraeus, and holding her equally to account for her actions. In our republic, no citizen — not even a presidential candidate — is more equal than others. At least I hope not.