The FBI and Hillary Clinton: What Happens When Morality Is Used as a Front for Law

8 min readSep 24, 2017

(UPDATED VERSION)

1. Moral sanctions and legal sanctions

Morality and law are two powerful tools that regulate human life in society. They are powerful because they are provided with sanctions, which are applicable if one or more of their precepts, norms or rules are not respected, either through action or inaction, namely if they are broken.

There is an important difference, though, between moral sanctions and legal sanctions. Moral sanctions consist of public blame, opprobrium, castigation, stigma, criticism, censure, and others. Legal sanctions consist of death penalty, imprisonment, probation, fines, restricting or prohibition of rights, and others. Both types of sanctions — moral and legal — are harsh, but legal sanctions are much harsher: they can physically touch both individuals and their properties, while moral sanctions can touch, primarily, the individuals’ mental or conscience.

Therefore, in case of an act of violence or repression — individual, group-related, or political — , moral sanctions alone are insufficient to constrain the unjust act. These moral sanctions, coming from society as a sum of individuals, must be backed up by legal sanctions, coming from the society’s repression apparatus.

2. Hillary Clinton’s Filegate Case

The FBI has been investigating Mrs. Hillary Clinton (former First Lady, Secretary of State, and presidential candidate) for sending and receiving top secret information over her personal email system. On Tuesday, July 5, 2016, a day after the National Independence Day of Fourth of July, and weeks before both political parties’ national conventions (Republican and Democrat), the then FBI director James Comey said that he would not recommend charges against Hillary Clinton over her use of private email servers while Secretary of State, but he criticized her for “extremely careless” behavior.

FBI: Clinton 'extremely careless' but no charges recommended

But Comey administered an extraordinary tongue-lashing to Clinton and her aides, rebuking them for being "extremely…

www.cnn.com

In his own words: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended [emphases added by both Comey and the author of this article] 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.” And I will go no further.

I won’t mention that over 100 emails, of the over 30,000 emails that Hillary Clinton provided for the investigation, contained information considered classified when they were sent, and other 2,000 emails were deemed classified after being sent. Nor that she deleted emails to hide them from investigators. Nor that hostile actors — like the notorious Romanian hacker Marcel Lazăr, known as Guccifer — might successfully have broken into her emails.

Nor that Hillary Clinton’s aide, Huma Abedin, admitted in her deposition, taken before July 4, 2016 that Clinton destroyed “on more than one occasion” public records — like burning Abedin’s schedules — while she was Secretary of State. Nor that former President Bill Clinton and the then U.S. Attorney General Loretta Lynch, an official in charge of federal prosecutors, had a June 27, 2016 Monday night “not preplanned” 20-minute meeting on a private plane parked at the Phoenix Airport, in Arizona.

Back in time, in March 2015, it became publicly known that Hillary Clinton, as a Secretary of State (between 2009 and 2013), had exclusively used her private email server for official communications, rather than the Department of State email accounts maintained on federal servers, including thousands of emails retroactively marked “classified” by the Department of State.

In July 2015, inspectors general from the Department of State and the intelligence community referred the case to the Department of Justice. Their memo did not suggest a criminal referral, but a security referral made for counterintelligence purposes, following their statutory obligation to inform the intelligence community about any potential security breach; namely, that Hillary Clinton held classified information on her email server located outside secure government facilities.

In August 2015, the FBI entered the case. A number of about 50 agents were detailed to the investigation. In May 2016, an 83-page Department of State’s Office of the Inspector General report was released about the department’s email practices, including Clinton’s. On Tuesday, July 5, the FBI director stated Clinton’s “extremely careless” behavior in handling her email system, but recommended no criminal charges against her. On Wednesday, July 6, Attorney General Loretta Lynch announced that no charges would be filed.

3. “Extremely careless” behavior is still criminal behavior

Let us come back to the expression “extremely careless.” What does this expression mean? Is it incorporated in any legal statute or code? If it is, what is the legal sanction attached to it? And if this expression is nowhere to be found in any legal statute or code, then, consequently, it means that this is NOT a legal expression. Following this rationale, this means that the expression is a moral one.

But the FBI is a criminal justice agency, whose job is to conduct investigations and propose legal resolutions. The FBI’s job is NOT to pass moral judgments. This is an attribution belonging to organizations having a moral authority, like the Church, public opinion, a social group, family, or a wise man. It appears that the FBI is trying to have the cake and eat it, too. In other words, Mr. James Comey tried to play Pontius Pilate here, washing his hands of an embarrassing — yet another — Hillary Clinton’s Filegate case.

Non-jurists (joined by Mr. Comey for convenience reasons) often believe that “extremely careless” activity contains no criminal “intention.” So, where is no intention, there is no criminal liability, right? Wrong! Criminal liability covers several forms of guilt, and intention is just the gravest of them. Other forms of criminal guilt include negligence, gross negligence (recklessness), and exceeded intention (“preterintention” in legalese).

For instance, the 18 USC 793 statute does not require intent for a felony prosecution, but only “gross negligence.” Does this cover the “extremely careless” expression that the former FBI director Comey was talking about?

Let us take them in reverse order and exemplify. To the case in point, this means that for:

(a) Intention: Mrs. Clinton acted knowingly and purposely (direct intention) or knowingly, but not purposely (indirect intention) to pose a national security risk; the FBI says that’s not the case.

(b) Preterintention (exceeded intention): Mrs. Clinton acted knowingly and purposely just for storing classified material and information into a private email account, but negligently or recklessly posing a national security risk; the FBI says that’s not the case either.

(c) Gross negligence (recklessness) or negligence: Mrs. Clinton acted recklessly or negligently in storing classified material and information into a private email account, therefore posing a national security risk; the FBI points out the expression “extremely careless.” Bingo! We are here! Still in the criminal perimeter!

So, what are we talking about here? Why no criminal charge has been officially made? This is NOT a moral issue, as Mr. Comey wanted us to believe (he DID NOT represent a moral authority, but he DID represent the legal authority).

The conclusion is clear. The legal system has been rigged by the political system. Again. Morality has been used shamelessly as a front for law. And there is nothing the American people can do about it.