Hillary Human; Comey Voluble; Trump Hopeless -- The Email Saga Concludes

James Comey speaks, and speaks, and speaks some more -- before the press, Congress, and via media, us. FBI Director intends by his speaking to reassure and confirm his own personal integrity and the conclusion of his long inquiry into the email practice of the former Secretary of State. Months ago, well before Director Comey's unfortunate prosecutorial filibuster, Mrs. Clinton indicated that routing her work email to her home server was a mistake or human error. The problem? The hopelessly distorting nature of Donald Trump. Full disclosure: I am a supporter of Mrs. Clinton for president, and a former United States ambassador whose emails to state.gov were transferred to Mrs. Clinton's private server at an address I did not know then or now.

I was delighted to learn, but not surprised as a veteran of the Reagan Justice Department and Obama State Department, that no criminal charges were to be recommended, nor pursued, with regard to the former Secretary's email practices.

Mrs. Clinton's email practice was not well considered and it put personal privacy and a desire for confidentiality with regard to personal matters above the general interest. Long ago, Mrs. Clinton acknowledged that mistake. Gratefully, there is no evidence that the mistake led to the endangerment of a single American citizen. That, of course, was just luck and it is why both the Inspector General and the FBI director are correct in their separate suggestions that the email practices of the Department of State with respect classified information need to be carefully reconsidered and re-examined.

I dare say that if one examines the handling of classified information generally throughout the government will readily find regulatory gaps and unclarity that undermines the purpose of classification.

The Inspector General, an internal watchdog chose not to address departmental practice generally, but instead focused on Mrs. Clinton's email practice. The IG asserted that she lacked approval for her email practice, and had she sought it, it would've been disapproved. Perhaps, but it is contrary to fact and entirely hindsight and not entirely accurate.

In particular, the Inspector General did not point to, and could not point to, any specific section addressing the email arrangement adopted by the Secretary. There are provisions admonishing care in the handling of classified materials, but that merely begs the question. It cannot be assumed that Mrs. Clinton was in the wrong. Why? First off, because in the most common photograph of Mrs. Clinton using her email system, the legal advisor of the Department of State is seated directly behind her smiling, and certainly not manifesting alarm. While I'm not prepared to infer formal approval of the Secretary's email practice from the unobjecting presence of the top lawyer in the State Department (a former Yale law dean), if the matter was as reckless or as disregarding of departmental standard as Mrs. Clinton's opponents suggest, would there not have been a duty on the part of the highest-ranking legal officer of the Department of State not merely to smile benignly at such practice but to intercede and stop it?

There is a second reason why one cannot presume that Mrs. Clinton's email practice would've been disapproved as contrary to the foreign affairs regulations. Perhaps some reading this will think it only logical that the government's computer system would be more secure in terms of cyber infrastructure, but after the massive WikiLeaks disclosure of State Department cables that cannot seriously be maintained. My own experience in government, regardless of which party is in office, is that governmental equipment is always almost second-best to that which is available in the private market and used by business and university. For this reason, it could well have been reasonable for Mrs. Clinton to conclude that private email servers would not only serve her interest better, but also the interests of the United States in so far as encryption technology or other cyber security measures would be more up-to-date in the equipment not generally available to the government bureaucracy. In any event, the essential point is not that Mrs. Clinton's practice did not have the IG's blessing, but that the practice was seemingly known to the IG and the Legal Advisor and not objected to. That was neither approval nor disapproval.

The rule of law demands that rules be announced in advance. It is not special treatment for Mrs. Clinton or any employee in the Department to ask that rules to which they are expected to comply be promulgated in advance. Hindsight is 20/20; it is also contrary to the most basic principle of common law - the prohibition of ex-post facto legislation - that is, the punishment of innocent behavior after it has already been done.

The FBI director's conclusion that Mrs. Clinton did not willfully mishandle classified documents is matched by his expected finding that she did not intentionally obstruct the government's inquiry. Willful misconduct is a specific intent criterion, and as the FBI Director, Mr. Comey, suggested--- in the area of classified information, criminal violation demands more than mistake or oversight. Merely knowing that you are using a private server without more is not enough to satisfy what a reasonable prosecutor would need to prove beyond a reasonable doubt: namely, a flagrant and intentional disregard of security protocols.

Except to the most one-sided of Clinton detractors, the obstruction of justice inquiry also found nothing. As evidenced by Mrs. Clinton's cooperation throughout the inquiry and her anxious desire to speak with the Justice Department and the FBI, which finally occurred last weekend for some three hours, the Secretary could hardly be said to be obstructing justice. The fact that a small number of emails were disclosed by her staff rather than herself in response to the request for documents is neither here nor there since there's no evidence that she was deliberately withholding these from the over 30,000 produced by Mrs. Clinton directly. Moreover, Mr. Comey's statement suggests that except for a handful of email chains, none implicated even innocent disclosure. Here's where the rules need to be clarified. Who bears the ultimate responsibility for proper classification, or in light of subsequent events, reclassification: the sender or the recipient? It is not clear. What departmental practices need to be put in place to ensure that unsolicited materials don't contain improper reference classified matters? Active ambassadors can avoid this question because they are given access to a dedicated high-security computer system known affectionately as the "high side." But this computer equipment is not available to others who may have properly had access to classified information and may have need to discuss it subsequently with the Secretary or others with proper authority to discuss it. A person given the privilege to serve publicly has continuing duties upon return to the privare sector. Classified information practice does not facilitate that duty. It should.

On balance, both the IG and the FBI director disposed of their inquiry into Mrs. Clinton's practice fairly, and their call for institutional re-examination and reform well taken. What was unfortunate, and will be unfortunately abused and distorted by Mr. Trump, whose acquaintance with truth or fairness is at best fleeting, was Mr. Comey's gratuitous commentary about Mrs. Clinton being reckless in her handling of these materials and his suggestion that were she still a member of the Department of State that discipline would be in order. That comes close to suggesting a double standard, since if Mr. Comey actually believed administrative punishment warranted, he should have said so without equivocation.

He did not since the department's rules would, as suggested above, not support it.

Mr. Comey is a good and decent man and someone, as I have written elsewhere, can think himself the sole depositary of wisdom, and thus, be a bit melodramatic in his presentations. Often times this playing to the camera is harmless and is an aspect of human nature. In this instance, however, it violates the basic pledge of all U.S. attorneys, which Mr. Comey was at one time, not to speculate about that which one cannot prove. Doing so here treated Secretary Clinton less well than the rule of law and general practice would have afforded every other citizen. Mr. Comey's erroneous and unneeded annotation merely gives fuel to the base type of general disparagement engaged in by Mr. Trump. I am certain that was not Mr. Comey's intent, but to use his word, it was reckless.