GOP’s ‘Emailgate’ Response Shows How It Ended Up With Trump
Republicans have spent the Obama years encouraging disdain for the government by endlessly accusing public officials and even the president himself of bad faith, incompetence and lawbreaking. After hearing repeatedly how worthless, corrupt and illegitimate the government is from the very people who work for it, a significant portion of the public sees Donald Trump‘s lack of interest in how the government works or what the law is as a positive thing.
The Republican response to the non-indictment of Hillary Clinton last week is a particularly stunning example of the kind of theatrics that created the conditions for the rise of Trump.
After FBI Director James Comey announced that the FBI did not recommend indicting Clinton for any crime in connection with her use of a private email server as secretary of State, explaining that “no reasonable prosecutor” could bring a case, Republicans rushed to play backseat lawyer.
Paul Ryan said Comey’s decision “defied explanation” despite the lengthy and unprecedented explanation Comey provided for the benefit of non-lawyers like Ryan. The FBI’s massive investigation revealed evidence of carelessness and an inadequate security culture in the State Department, but it did not reveal evidence sufficient to prove a crime.
It is unethical for a prosecutor to bring a case unless they believe they can prove every element of the crime beyond a reasonable doubt. The Espionage Act, like most criminal statutes, requires a prosecutor to prove the accused had a specific mens rea, or intent to commit a prohibited act. Comey found no evidence that Clinton deliberately intended to expose classified information. Nor did he think it appropriate to charge her under an unclear provision of the act that prohibits permitting classified information to be “removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed” through “gross negligence.” Gross negligence is a legal term of art that describes a state of mind that is short of deliberate intent, but it still entails a conscious decision not to avoid a known danger. And it isn’t clear that provision, which has only been the subject of one case in nearly a century, even applies. Clinton may not have “removed” or “delivered” classified information to an unauthorized person by using a private server to email authorized persons like staff with security clearances. The FBI lawyers looked at the statute and the caselaw interpreting it and determined it would not be appropriate to prosecute.