Why Hillary Clinton Will Not Rot In Jail For Aggravated Emailing: Your Ultimate #Emails Wonksplainer

Not the devil apparently?

 Hola , como esta , are you confused as to why history's vilest AOL free trial user Hillary Clinton will not be indicted and sent to prison for the rest of her natural life? The answer is simple:  THE GAME IS RIGGED AND THE FBI IS IN HILLARY'S BACK POCKET, MY NAME IS HAHAHAHA GOODMAN AND I APPROVE THIS MESSAGE! The end.

[wonkbar]<a href="https: //wonkette.substack.com/p/fbi-refuses-to-imprison-hillary-clinton-for-being-historys-greatest-email-monster"></a>[/wonkbar]Just fooling, we are not a crazy person. But there are a couple of things to understand about FBI Director James Comey's recommendation that the Justice Department not pursue charges against Hillary. For one thing, though it wasn't the best practice Hillary and her team could have come up with, it wasn't actually illegal for her to use her own private email servers.

Explain, Politifact:  

There was not an explicit, categorical prohibition against federal employees using personal emails when Clinton was in office, said Daniel Metcalfe, former director of the Department of Justice’s Office of Information Policy, where he administered implementation of the Freedom of Information Act. [...]

So it seems she didn’t break a rule simply by using a personal email to conduct business. Rather, by using personal emails exclusively , she skirted the rules governing federal records management...

BUT, and there is a "but":

In Clinton’s defense, we should note that it was only after Clinton left the State Department, that the National Archives issued a recommendation that government employees should avoid conducting official business on personal emails (though they noted there might be extenuating circumstances such as an emergency that require it). Additionally, in 2014, President Barack Obama signed changes to the Federal Records Act that explicitly said federal officials can only use personal email addresses if they also copy or send the emails to their official account.

So technically she was following the laws about use of personal email, even if she was being a bit screwy with it, by solely using her own private servers. For the record, the State Department has said Hillary ain't never asked them for specific permission to use her own hillz@benghazi.lol web server, and they wouldn't have given it if she had. But also for the record, Colin Powell used personal email when he was Secretary of State, though his was not on a private server like Devil Hillary had.

Now, about the classified stuff. Though it's been acknowledged that Hillary received and sent what Comey says is about 110 emails that ultimately contained classified information, the actual laws in question require a person to have broken them willfully . It involves a legal concept called  mens rea , which basically means criminal intent. Did Hillary intentionally break the law and send sexxx chats about our nuclear codes to our enemies, or was that an oopsie that happened when she was just trying to send her peach cobbler recipe to Vladimir Putin and Hitler's ghost? (NONE OF THAT HAPPENED, you conspiracy-snorting goons.)

ABC legal analyst Dan Abrams splainered the two laws in question in April. One, 18 U.S.C.A. § 1924(a), pertains to knowingly removing classified information, and Abrams said it's a high bar to prove something like that, especially since different agencies of the government are always "squabbl[ing] over what is classified and what isn’t." Breaking that law is a misdemeanor, if you can prove it. (Like what happened with David Petraeus! He pleaded guilty, because he was!)

The second law, though, is where things get more interesting. It's called 18 U.S.C.A § 793(f), and breaking it is a felony. Here's the text:

"Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both."

Abrams explains that this might seem to incriminate Hillary, what with all its "gross negligence" language -- and Comey did say that Hillary and her team (and basically all the rest of the State Department for all of US American history) were "extremely careless" with information found on her servers.

However, citing a 1941 Supreme Court case, Abrams notes that this law is actually about espionage, and requires the "grossly negligent" Long Hair Don't Care lady (or man!) in question to actually know they're mishandling classified information in a way that could gravely harm the United States:

The Supreme Court clearly never envisioned a prosecution under the Espionage Act without "intent" to injure the United States and in "bad faith." [...]

Could an aggressive prosecutor argue that it was grossly negligent for her to run all of her emails out of her home server and that doing so included "national defense" information "removed from its proper place of custody"? Sure, but that would also completely warp the intent and interpretation of this espionage law ...

"[G]ross negligence," as a legal matter, doesn’t, and shouldn’t, just mean it was wrong or dumb or even just careless. Rather gross negligence is generally defined legally as: "A lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence...."

Did Hillary do that? FBI Director Comey (who is actually a very Republican person!) thinks not.

As Ian Millhiser points out at Think Progress, Comey specifically mentioned the idea of precedent at Tuesday's press conference:

[T]he FBI could not “find a case that would support bringing criminal charges on these facts” as “all the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an interference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”

“We do not see those things here,” he added.

It's like the FBI doesn't even believe Hillary is an America-hating feminazi who wants to murder Lady Liberty in her crib! But for serious, if there is actually no precedent for prosecuting somebody for committing grievous acts of email terror along the lines of what Hillary did, then it would be a tad bit shifty to make an example of her.

Indeed, Millhiser also says that in the day-to-day operations of government, being "careless" with classified info the way Hillary was isn't uncommon at all:

[A] former CIA general counsel told the Washington Post’s David Ignatius, “’it’s common’ that people end up using unclassified systems to transmit classified information.” “’It’s inevitable, because the classified systems are often cumbersome and lots of people have access to the classified e-mails or cables.’ People who need quick guidance about a sensitive matter often pick up the phone or send a message on an open system. They shouldn’t, but they do.”

Millhiser's point is that if you're going to lock Hillary up and throw away the key, you're going to have to go after a metric fuckload more people than just her.

So that is basically the scoop on how the system is #rigged and Hillary The Criminal is free to walk the streets of US America in her pantsuits yet another day. Can we be done talking about these goddamned emails forever now, please?

[ Politifact / ABC / Think Progress ]