Law Review: Clinton spared agony of indictment, FBI protected from criticism

Sol Wachtler, a former chief judge of New York State, once famously remarked that prosecutors have so much influence, they could get a grand jury to "indict a ham sandwich."

If so, why did FBI director James Comey decline to recommend criminal charges against former Secretary of State Hillary Clinton, who sent and received classified documents on an unauthorized personal server, potentially exposing sensitive intelligence to foreign hackers?

The answer is that in most cases, it's a judgment call and evidence of a crime is only one factor in the decision.

Politics play a role, too.

In 2002, when Enron collapsed and financial markets tanked, the public reacted with fury, Democrats expressed outrage, and House and Senate Republicans found themselves facing tough reelection battles. Soon enough, Republican President George W. Bush, who had been accused of being too cozy with big business, appointed a corporate fraud task force to root out corporate wrongdoing.

The move not only brought the weight of prosecutorial power down on corporate hucksters, but it insulated Republicans from charges that they weren't doing anything about the problem.

In recommending against criminal charges, Comey spared Clinton the agony of an indictment while protecting his agency from a firestorm of criticism that he, a Republican appointee, had sought to meddle in the election.

True, Republicans are now accusing him of just that. But the charges have less traction because Comey accused Clinton of being "extremely careless" in using a private email server. Comey said this irresponsible behavior may have exposed top secret communications to hacking by "hostile actors" - read foreign governments.

It was a devastating commentary and the stuff of a ready-made campaign ad for presumptive Republican nominee Donald Trump.

If that was Comey's way of helping Clinton, it would be interesting to find out what he would do if he were actually working against her.

The Clinton email scandal is a good case study in the complexity of bringing criminal charges. The conduct attributed to Clinton at Comey's Tuesday announcement and in his testimony before the House Oversight and Government Reform Committee a few days later was nothing short of reckless.

Clinton, who as Secretary of State was privy to the government's most sensitive secrets, conducted all her mail communications outside the state department's protected networks, instead using a private server located in the basement of her home in Chappaqua, N.Y. without even the minimal safeguards afforded a basic Google email account.

She said she did this for convenience.

Some of the persons she had been in email contact with had been hacked. When outside the U.S., she used her blackberry, transmitting emails over telecom systems controlled in some instances by hostile governments of the countries she visited.

Comey said it was likely her email had been hacked as well.

He also debunked Clinton's claim that no classified information had been transmitted through her off-line email account and that she and her lawyers had turned over all work-related emails to the State Department.

In fact, some 2,000 work-related emails were uncovered by the FBI that had not been turned over, and there were probably more. Hard to know for sure, because Clinton's lawyers deleted thousands of emails they deemed personal, and then, as Comey put it, "wiped their devices clean" so the emails could no longer be recovered.

Yet, given the record that was available, it is more than likely that the case for criminal charges was questionable.

Most prosecutors will tell you that it isn't enough that investigators find evidence of criminal wrongdoing.

They need to be reasonably certain the evidence is strong enough to carry the day in a trial. Ron Levine, a former prosecutor with the U.S. Attorney's Office in Philadelphia who now represents clients in white-collar prosecutions, said they also look at the scope of the offense and resulting damage, and whether there's evidence the target knew that he or she was doing something wrong.

That's what did in David Petraeus, former Central Intelligence Agency director and commander of U.S. forces in Afghanistan. Petraeus gave classified information to his girlfriend, and when he was caught, lied to investigators.

In the end, the Justice Department cut Petraeus a break. Line prosecutors wanted to indict him for obstruction of justice, a felony charge. Former Attorney General Eric Holder stepped in and downgraded the charge to a misdemeanor for mishandling classified information, no doubt a nod to Petraeus' war record.

Was that a political decision? Probably.

While Clinton did send and receive classified documents over her secret server, the number proven was minuscule, 110 or .03 percent of the 30,000 that she turned over to the State Department.

Levine is a Clinton supporter and plans to vote for her. But his points are basic to well-run prosecutions and shared by law enforcement officials regardless of party.

"As a prosecutor, you want to prosecute people who are really meaning to violate the law; they have bad intent or have caused great damage," he said. "The seasoned, veteran, professional prosecutor doesn't want to criminalize mere mistakes."

cmondics@phillynews.com

215-854-5957@cmondics