Cognitive Dissonance: Comey, Clinton, and the Rule of Law

I generally try to avoid jumping into the fracas that is politics on the internet, but I have to share a few thoughts on yesterday’s FBI decision to not recommend sanctions against Hillary Clinton. Before continuing, you might want to read the text of FBI Director James Comey’s comments.

Let me start by admitting that I’m no fan of Hillary Clinton. For that matter, I don’t care for Donald Trump either. In fact, this piece is less about politics and more about common sense. If you read or listened to Director Comey’s remarks with an open mind, then you were surely struck, as I was, by the sheer incoherence of the findings. Below I will present four key quotes from Comey’s remarks with only minimal commentary so that you may reach your own conclusions:

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Notice that the Espionage Act covers mishandling of documents as a result of intentional actions or grossly negligent actions.

Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

So, Secretary Clinton didn’t intend to violate the law — which is a fair assessment in my opinion — however, Clinton and her colleagues were “extremely careless.”

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

So there is evidence of violations…

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

…and in a similar circumstance, a violator would often be subjected to security or administrative sanctions, yet the FBI won’t recommend any sanctions in this situation.

Final Thoughts

I am certainly no legal scholar, but “extreme carelessness” and “gross negligence” seem to be two descriptions of the same thing. If gross negligence is defined as a “reckless disregard for one’s legal duty,” and the legal duty of a person possessing classified information is to prevent such information from being removed “from its proper place of custody”, then how is placing classified information on a personal server, lacking the necessary security precautions to hold classified material, not a “reckless disregard for one’s duty?”

To answer that question, I suppose you’d have to ask Director Comey, but even he seemed to admit that such careless behavior would normally warrant consequences. What we have is a clear case of cognitive dissonance — the FBI sees evidence of statutory violations and admits that violators would normally face sanctions, yet takes no action.

Instead, the FBI is carving out a space above the law for Mrs. Clinton and setting a dangerous precedent in the process. Of course, this decision affects the 2016 race, but this decision is larger than one person or one election. The precedent of excusing top government officials from criminal wrongdoing, intentional or not, ought to be far more troubling to the American citizen than the prospect of a Clinton presidency.