On Tuesday, FBI Director James Comey — a Republican who served as Deputy Attorney General under President George W. Bush — announced that Democratic presidential candidate Hillary Clinton should not face criminal charges for the way she handled emails as Secretary of State. This outcome was widely anticipated by legal experts familiar with the underlying law.
Nevertheless, House Republicans immediately reacted with outrage, using Comey’s testimony before a House committee on Thursday to attack his decision not to use the criminal justice system to sanction one of their political enemies. Clinton’s presidential rival, Republican Donald Trump, was even quicker to accuse Comey of applying a double standard to Clinton:
FBI director said Crooked Hillary compromised our national security. No charges. Wow! #RiggedSystem
— Donald J. Trump (@realDonaldTrump) July 5, 2016
Ironically, however, in using Comey’s testimony as a vehicle to attack Clinton, House Republicans succeeded in undermining Trump instead. Far from confirming that a #RiggedSystem rescued Clinton from criminal charges, Comey testified that only a rigged system would indict Clinton.
Most criminal laws governing classified information require prosecutors to prove that a defendant “knowingly” violated the law in order to secure a conviction, but there is little, if any, evidence that Clinton committed any such violations. For this reason, Clinton’s critics have largely fixated on another provision which permits prosecutions for “gross negligence.”
During his initial statement announcing that Clinton should not face charges, however, Comey explained that the FBI could not “find a case that would support bringing criminal charges” under this gross negligence standard either. To the contrary, all previous prosecutions for similar offenses involved particularly egregious conduct such as “clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an interference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
Early in his congressional testimony on Thursday, Comey expanded upon this analysis, explaining that prosecutions under the “gross negligence” provision are so rare that there’s only been one such prosecution in the 100 years since that law was enacted. At several other points, he suggested that the gross negligence law is unconstitutional.
Indeed, in his single most important statement, Comey did not simply reject Trump’s claim that Clinton benefits from a #RiggedSystem, he said that the opposite is true. In light of the near absence of any prosecutions for alleged gross negligence and that fact that previous prosecutions in similar cases all involved egregious factors that are not present in Clinton’s case, Comey responded to a line of hostile questions from Rep. Tim Walberg (R-MI) with a rhetorical question and answer — “you know what would be a double standard? If she were prosecuted for gross negligence.”
Republicans, in other words, aren’t asking for Clinton to be held to the same standard as other people in similar situations. They are asking the Justice Department to apply one set of rules to everyone else and another, far more draconian standard to Hillary Clinton.