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November 20th, 2017

Insight

No charges but plenty of blame for Hillary

Jonah Goldberg

By Jonah Goldberg

Published July 8, 2016

It was clear from FBI Director James Comey's congressional testimony Thursday that he thinks Hillary Clinton lied to the American people, even if he was reluctant to say it in so many words.

But then he didn't need to. We've known for over a year that Clinton has been lying about her server. She lied about the reason she set it up -- she claimed she wanted the convenience of using just one device. She claimed she never sent or received any classified email. She claimed she handed over all of her work-related emails. She claimed that her stealth system had been approved. She claimed that her lawyers read every one of her emails before opting to hand them over or delete them.

Except for that last lie, all of these -- and there are many more -- were proven to be falsehoods a long time ago.

Of course, lying to the American people is not a crime. If it were, most politicians would be waiting their turn to use the weights in the prison yard.

I do not buy Comey's explanation for why he decided not to recommend prosecution to the Justice Department. He concedes that there is little difference between "gross negligence" -- the standard in the relevant law -- and extreme carelessness, his description of Clinton's conduct. But Comey says that the DOJ does not prosecute cases of "gross negligence" unless there is criminal intent. The problem is that the whole reason there is a statute criminalizing gross negligence in mishandling classified information is to cover cases where there wasn't criminal intent.

Comey argues that the relevant law, on the books for 99 years, is constitutionally suspect because it doesn't require criminal intent for prosecution. It's a strange argument given that lack of criminal intent is no defense in cases of negligent homicide and many other crimes. Also, the federal government routinely invokes "disparate impact" theory in civil rights cases, when the whole point of disparate impact law is to punish allegedly unintended harms.

You'd think that if this standard were such a constitutional horror, the Supreme Court would have noticed it by now.

For me, it's pretty simple. Clinton maintained an illegal, unsecured server in violation of law, policy and common sense to protect her political privacy. As I've been shouting for over a year, the server itself is the smoking gun. If it's illegal to ship classified information in a secret pneumatic tube from your office to your home, the mere fact that you had a pneumatic tube installed for such purposes is all the proof of intent you need.

But it's worse than that. When Clinton and her aides were informed that what she was doing was wrong, she kept doing it anyway. When the facts came to light, she lied to the public. As Rep. Trey Gowdy (R-S.C.) noted during Thursday's hearing, those lies illuminate her intent. You only lie about not doing something wrong if you know that what you did is wrong.

That said, I don't buy the conspiracy theories that Comey was bought off somehow. I think his decision to side against prosecuting Clinton stems from the fact that it was the safest course for him and the FBI. For millions of people, this decision taints the FBI, but much, much less than it would have if he opted to fatally damage the candidacy of a major party nominee, even one who's always been willing to attack, belittle and smear anyone standing in her way.

This has always been at the heart of why I think the Clintons are so repugnant. If a woman goes public with a credible -- or demonstrably true -- accusation of sexual harassment or assault, Bill and Hillary Clinton are perfectly happy to destroy the accuser. If a law enforcement official or journalist tries to get the truth about any of their myriad misdeeds, then Clinton Inc. goes into overdrive to discredit the truth-seeker.

Comey was presented with a terrible set of options. He chose the one that would least damage his reputation and the reputation of his agency. I don't like the decision, and I don't agree with his arguments defending it. But the ultimate blame resides entirely with Hillary Clinton and her gang. They taint and politicize everything they touch, because they put their interests above everything else.

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Jonah Goldberg is a fellow at the American Enterprise Institute and editor-at-large of National Review Online.

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