Don't Let the FBI's E-Mail Surprise Swing the Election
To borrow a phrase from Vermont's favorite socialist, I too am sick and tired of hearing about Hillary Clinton's damn e-mails.
As we all found out on Friday afternoon, the FBI is reviewing some messages involving a close Clinton aide to see if they contained classified information. The agency's director, James Comey, said so in a vague letter to congressional leaders, and it has turned the election yet again on its head.
This is the political equivalent of crack cocaine. House Speaker Paul Ryan called on the director of national intelligence, James Clapper, to suspend classified briefings to the Democratic candidate. Prominent liberal pundits are in high dudgeon, alleging that Comey is trying to throw the election to the Republicans. The Trump campaign meanwhile is elated. Its campaign manager, Kellyanne Conway, tweeted that "A great day in our campaign just got even better."
It's worth taking a step back and look at what the bureau is actually investigating. The New York Times reports that new e-mails came to the bureau's attention in its investigation of former Democratic congressman Anthony Weiner for sexting with under-aged girls. Weiner is married to a top Clinton aide, Huma Abedin. Comey's letter says that the bureau is now reviewing whether the messages contained classified information.
At the heart of this issue is the mishandling of classified information. Clinton used a private, unsecure server to conduct official business with her staff at the State Department. Comey said over the summer that Clinton's decision to use the server was reckless and that foreign powers may well have accessed her e-mails, even though the bureau could not prove that definitively.
For this she has paid a major political price. The question is whether her negligence should be treated as a crime. To answer this question, it's worth putting the national security damage wrought by Clinton's private e-mail server into some context. Despite unprecedented steps from the FBI to crack down, more state secrets have been disclosed during the Barack Obama presidency than at any other time in American history.
There are the voluminous disclosures of diplomatic cables from WikiLeaks, and the National Security Agency troves from Edward Snowden. There was the hack of the Office of Personnel Management, which gave the Chinese access to the security clearance files on thousands of Americans serving in sensitive positions in the U.S. government. Then there are the press leaks of cyber operations against Iran's nuclear program and operations against al-Qaeda's franchise in Yemen. Finally, the State Department's own unclassified e-mail system was hacked in 2014.
In this sense, calling for the prosecution of Clinton in the name of cybersecurity or the protection of state secrets is a bit like cracking down on jaywalking when a serial killer is on the loose.
It's fair to argue that the law is the law. As the secretary of state, Clinton should be held to a high standard, since lower level officials would be penalized for doing what Clinton did.
But this argument cuts both ways. The FBI always has to prioritize what it investigates. Part of that calculation should consider the damage, in context, done by the alleged crime. When it comes to mishandling classified information, I can tell you from experience, many government officials at one time or another will leak classified information to reporters. As I reported over the summer, it's common to find something that would be considered classified in the unclassified e-mails of most government officials.
But there is a greater issue at stake. As a member of the press, I have an interest in less government secrecy and less scrutiny for government sources. So I acknowledge I am biased here. But it's not healthy for the republic in the long run for the FBI to investigate the mishandling of national security information wherever it finds it.
This would give the FBI director extraordinary power over the rest of the government. There was an interagency process to retroactively determine what was and what was not classified in Clinton's e-mails, and it showed that reasonable people disagree on this all the time. The problem is that the FBI has way too many secrets to protect.
So, those Republicans giddy over the thought that Clinton could end up going to jail for her private e-mail server should ask themselves how they would feel if the shoe was on the other foot. Should the FBI director have the power to influence an election through choosing to prosecute a crime Republicans and Democrats commit all the time? As the saying goes, careful what you wish for, you might just get it.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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