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Careless but not prosecutable

FBI Director Comey seems to me to have it right: Secretary of State Clinton was “extremely careless” in handling classified material, but for prosecution the law requires that she mishandled it intentionally or with gross negligence. That standard, he thought, could not be met by any reasonable prosecutor.

I’ll get in trouble for this: the system, as Donald Trump says, is rigged. It is rigged in favor of the accused. It is rigged the same way with respect to criminal fraud charges against his Trump “University,” not to mention his importation of foreign workers to serve as waiters in a state with a high unemployment rate.

Comey got the analysis correct, but he did not quite capture my personal feelings on the subject. All material of an official character going to or coming from the Secretary of State in my experience is classified. When I was a director in the State Department’s Bureau of Intelligence and Research more than 20 years ago, I would occasionally write pieces for the Secretary based entirely on publicly available material. They went up to the Secretary classified “confidential.” When I asked why, the answer was unequivocal: you wrote it and it is being read by the Secretary. That’s enough reason, I was told.

I objected at the time, but in retrospect I was wrong. It is one thing for me as a private person to speculate on the virtues of partitioning Cyprus. It is quite another for me as a State Department official to suggest that US policy be changed to support the idea. Words have consequences. They can be stabilizing half a world away. There are a lot of ideas floating around the bureaucracy, some of them bad. Government would be impossible if all of them were made public.

That doesn’t mean classification of information isn’t overdone. It often is. I wondered when I was in government whether we were protecting national security information, or just how little we knew. President Bush blundered to war in Iraq on the basis of inadequate and false information. Tony Blair blithely followed his lead. Journalists I knew at the time were convinced that the Iraqi “weapons of mass destruction” were non-existent, but the Administration managed to squelch any serious discussion of that possibility. No doubt both Bush and Blair would have benefited from a more open flow of ideas and analysis.

But that is not what Hillary Clinton did. She arranged her email to her personal convenience, as if the rules did not apply to her. That is the real issue underlying this and many other criticisms of Hillary, whom I support for President. But she betrays an arrogance about whether the rules apply to her. Permitting Huma Abedin, a government official, to be employed also outside the government is another glaring example.

This contrasts sharply with one of Barack Obama’s unsung virtues: he usually avoids skirting the rules. And when he does, it is not for his personal gain (examples: his effort to loosen immigration rules by presidential decree, or if you like Solyndra). We haven’t had a White House involved in less personal scandal than his for many years.

I like to think Hillary Clinton can reform. She needs to own up fully to her mistake in handling emails while Secretary of State and pledge to run an Administration strictly within the letter and spirit of the law. Careless but not prosecutable is not an adequate standard for the Presidency.