Hillary Clinton’s classified email scandal might look like a minor distraction once facts about the suspicious dealings of the Clinton Foundation are unraveled. I’ll cover the foundation later this week. In this post, I’ll review some considerations relevant to the email case. This is the second in a three-part series of posts on Hillary’s more recent foibles, following the first installment on her role in the Benghazi disaster.

Hillary Clinton’s “grossly negligent” misuse of classified email during her tenure as Secretary of State was harshly criticized by FBI Director James Comey last week. Nevertheless, the Bureau declined to recommend an indictment to the Department of Justice (DOJ) based on their inability to prove mens rea, or any awareness of guilt or an intent to do harm. It is doubtful that Clinton had any intent to harm the country. At a minimum, however, Comey’s statements implied that she did not take security seriously.

The basis of any claim that Clinton lacked awareness of her security responsibilities is shaky, to say the least. Clinton’s private email stunt was a willful effort to avoid legitimate scrutiny, such as FOIA requests. The IT expert who set up her private servers and other devices pled the Fifth Amendment to avoid self-incrimination! There have been reports that Clinton asked aides to remove classified markings (also see here). All we have from the State Department on that allegation is a denial. Clinton repeatedly lied to the public and to Congress (under oath) about classified material and the number of devices she used. She also lied to a federal judge (under oath) about having turned over all work-related emails to the State Department. Many of those emails were deleted, leaving suspicious gaps in the pattern of traffic. Indeed, Clinton’s actions in the case give every appearance of an effort to obstruct justice.

Some of the missing emails will come to light. Wikileaks has released a trove of Clinton’s emails showing additional classified material. There are also pending civil cases related to the emails in which the plaintiffs wish to subpoena Mrs. Clinton. Needless to say, her lawyers are making every effort to stop the subpoenas.

Jacob Sullum at Reason discusses Comey’s decision in the context of mens rea. He notes that Clinton’s offenses were certainly prosecutable under the letter of the law. Despite denials from Clinton apologists, the case of a Navy operations specialist in 1992 is instructive. The defendant in that case claimed that willingness to mishandle classified information was not sufficient for a conviction, but the military court disagreed under the same provision of the law referenced by Comey:

“… the court turned to the subsection at issue in Mrs. Clinton’s case: ‘Section 793(f) has an even lower threshold, punishing loss of classified materials through ‘gross negligence’ and punishing failing to promptly report a loss of classified materials.’”

Nevertheless, Sullum thinks Comey’s defense of mens rea protections for individuals accused of certain violations of law is admirable, and I agree (except Comey’s second clause in the quote below, regarding “in that statute in particular“, is not strictly true). The explosion of federal law, especially regulatory law, makes this more crucial than ever from a libertarian perspective. Here is Comey:

“‘The protection we have as Americans is that the government in general, and in that statute in particular, has to prove before [it] can prosecute any of us that we did this thing that’s forbidden by the law, and when we did it, we knew we were doing something that was unlawful. We don’t have to know the code number, but [the government must show] that we knew we were doing something that was unlawful.’“

For background on the issue of a defendant’s willingness to violate the law, Paul Rosenzweig of the Heritage Foundation has a great article called  “Ignorance of the Law Is No Excuse But It Is In Reality“. By that title, Rosenzweig means that there are so many federal crimes today that ignorance of the law very often should be a valid excuse. However, the contention that Hillary Clinton was ignorant of the law regarding her duties in handling classified information is dubious at best.

Unfortunately, Clinton’s interview with the FBI just days before Comey’s announcement was not conducted by Comey, was not made under oath, and was not recorded. That leaves significant doubt about the seriousness of the FBI’s effort to learn the truth about the record, or any contradictions in the record, that might shed light on Clinton’s awareness or intent to violate the law. And Attorney General Loretta Lynch, after a “personal” meeting with Bill Clinton, recused herself and her office from prosecutorial duties prior to Comey’s announcement, stating that she would accept the FBI’s recommendation without examining the case. That step casts doubt on her seriousness as an independent prosecutor. Hillary skates, for now.