In the aftermath of FBI Director James Comey’s recommendation against charges for Hillary Clinton’s email server, typical Republican and leftwing anti-establishment outrage flooded the media.
Clinton’s “extreme carelessness,” they said, was more damaging to American national security than Edward Snowden’s, David Petraeus’s, and Bradley Manning’s security violations, and thus demanded a proportionate punishment. Though Snowden himself seems puzzled with the verdict, Comey’s statement was well-reasoned on the issues of intent in the criminal prosecution of national security violations.
What differentiates Snowden’s, Petraeus’, and Manning’s cases from Clinton’s was that the former three intentionally distributed classified information to unauthorized individuals.
Snowden turned over documents on the PRISM program, among other government operations, to The Guardian.
Petraeus gave confidential information to Paula Broadwell, his biographer and lover.
Bradley Manning sent documents to WikiLeaks.
It does not matter whether any of these individuals’ actions were morally right or wrong. They included an intent to leak that Clinton simply did not have.
Now, Snowden and Manning might be heralded as whistleblowers fighting against an increasingly secretive American government that has violated the Constitutional and human rights of millions of Americans. And It could be argued that they, and Petraeus, did not harm national security if one truly believes that the documents were not exploited by foreign entities (and that’s a bit of a stretch).
However, as in the prosecution of libel, intent matters far more than consequences when proving the existence of a crime. Unless malicious intent—in this case, distribution of classified information to non-cleared individuals—can be proven, careless incidents endangering government secrecy are treated more like liabilities to companies: Employees are fired and security clearances are revoked, but no one is prosecuted.
All individuals whom Hillary Clinton had intentionally communicated with were cleared to access the information. Is it possible that unauthorized and foreign entities accessed the server? Yes, but that does not go the issue of intent, which is lacking in this “crime.” But even if you were to ground an indictment on the basis of consequences, the FBI itself said that though Clinton’s server could have been hacked, there was no indication that it was.
As a matter of law, Comey’s recommendation was spot-on.