Smerconish: Clinton's unacceptable lack of transparency

We may never know whether Hillary Clinton's several private email servers and numerous mobile devices were hacked by hostile actors, but we certainly do know that her actions imperiled the public's right to know. Despite her claim to the contrary, her communication choice was never a matter of simple convenience. It was about asserting control at the expense of transparency and possibly national security. The former has been made clear through results obtained in litigation initiated by Judicial Watch, the self-described "conservative, nonpartisan educational foundation," the latter by the FBI investigation.

"This was about keeping stuff secret from the American people," Tom Fitton, Judicial Watch's president, told me in February. That Fitton's group has a history of antagonism toward the Clintons does not diminish what its efforts generated.

Undeniable is that by her actions, Clinton supplanted the role of Freedom of Information Act officers within the State Department whose job it is to satisfy the public's access. Her use of private email servers, unlike using a private email address, enabled the deletion of messages so as to avoid FOIA requests. Never should her representatives have been the sole arbiters of which among 60,000 emails that passed through her servers would enter the public domain. More than half were destroyed without any chance for second-guessing. FBI Director James Comey made it clear that the review by her functionaries was cursory.

"The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her emails, as we did for those available to us," Comey said. "Instead, they relied on header information and used search terms to try to find all work-related e-mails. . . . It is highly likely their search terms missed some work-related emails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server."

Something else does not pass the smell test: The determination that all those emails were either entirely public or private defies common sense. Think about your own workplace - how often do emails combine work and play? Yet in Clinton's case, there was an all-or-nothing determination. That some emails could have discussed both yoga or Chelsea's wedding and government business is only logical.

Compounding the situation was the equally disquieting sworn testimony of Patrick Kennedy, the State Department's undersecretary for management, who on June 29 answered deposition questions for Judicial Watch attorney Michael Bekesha for 21/2 hours at the Justice Department. Bekesha asked Kennedy how, during his receipt of 50 to 75 emails from Clinton via her private servers between 2009 and 2013, he did not recognize that they were coming from @Clinton.email and not @State.gov. Said Kennedy:

"I did not focus on the 'from' line," he testified, adding that he often just hit "Reply all."

"It did not register as - it did not strike any bells in my mind, no," he said.

Really?

The nation is evenly divided as to whether the Clintons are unscrupulous grifters or lifelong public servants who are the targets of a vast right-wing conspiracy. What seems obvious is that to shield her conduct from those in the former category, Hillary Clinton went too far. And, in the process, she created a black hole into which information that might have been the public's business was lost to history. Emails to or from her private servers and an individual off the government grid were only discoverable if Clinton's functionaries so determined. That's an unacceptable lack of transparency.

Comey said "no reasonable prosecutor" would bring a case against Clinton despite her having been "extremely careless," as evidenced by her sending 110 emails that contained classified information, even if not so marked, at the time they were sent. But what is gross negligence if not extreme carelessness? Clearly, Comey could have met the requisite probable cause to warrant an indictment. But he sounded dubious of meeting his criminal burden of proof beyond a reasonable doubt.

"Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities," Comey said.

Dan Abrams, ABC's legal analyst, has supplied one of the more sober analyses of the laws to which Comey referred. Abrams opines that, under the misdemeanor statute, the requirement of "knowingly removing such documents" cannot be met, and that even if the "gross negligence" requirement can be satisfied under the applicable felony statute (Espionage Act), the Supreme Court has interpreted that law as requiring "intent" that the information be used to cause injury to the United States and "bad faith."

But Comey was unwilling to let a jury make that determination. Instead, he said similar cases that were prosecuted involved "some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice."

So instead of setting in motion a process that might have resulted in the emergence of an eleventh-hour alternative, Comey's exercise of discretion leaves the nation with flawed choices.

Michael Smerconish can be heard from 9 a.m. to noon on SiriusXM's POTUS Channel 124 and seen hosting "Smerconish" at 9 a.m. Saturdays on CNN.