It Was Right That Clinton Wasn't Prosecuted for Her Emails

This article first appeared on the Cato Institute site.

It's been a little over a year since Bernie Sanders assured America that the public was "sick of hearing" about Hillary Clinton's "damn emails," and to put it mildly, the claim has not aged well.

Even before Friday's announcement that the FBI had uncovered an additional cache of emails from Clinton's personal assistant Huma Abedin—and the inevitable media feeding frenzy that followed—Clinton's use of a private email server during her tenure as secretary of state had remained a central campaign issue.

If anything, the controversy had metastasized: The FBI's investigation into Clinton's server, culminating in a recommendation that no criminal charges be brought, was received by many as evidence of a corrupt cover-up even more disturbing the underlying offense, a clear-cut case of a Beltway elite getting a pass for conduct that would have seen a normal schlub clapped in irons.

It's this, probably more than any other alleged misdeeds, that has made "lock her up!" a popular refrain at Donald Trump's rowdy rallies.

As a frequent critic of the FBI's routine demands for broadened surveillance powers, it's heartening to see people recognizing that the bureau is not somehow immune to improper political influence.

Moreover, given the Obama Department of Justice's unprecedented use of the Espionage Act to prosecute whistleblowers (rather than spies)—his administration has pursued more cases under that law than all his predecessors' combined—it's hard not to feel a twinge of schadenfreude when the public concludes that Clinton's "extreme carelessness" with classified information (as FBI Director James Comey characterized it) must surely be criminal too.

But in large part because I'm uneasy about normalizing this aggressive approach to the Espionage Act, I think it's necessary to explain why this widespread perception is wrong, and Comey's conclusion that "no reasonable prosecutor" would have pursued charges against Clinton on the available facts was pretty clearly right.

While it's impossible to know what other damaging revelations the newly discovered tranche of emails may contain, it seems unlikely they will materially alter that basic legal conclusion.

One thing to get out of the way up front: None of what follows is ultimately a defense of Clinton. Beyond the poor judgment implied by her sloppy approach to classified information, the effect (and probable intent) of Clinton's use of a private server was to hamper government transparency by giving her improper de facto control over correspondence that should be subject to Freedom of Information Act requests—which is to my mind perhaps the most troubling aspect of her conduct. (Much as this former reporter might wish otherwise, circumventing FOIA is not a criminal offense.)

This post is narrowly concerned with whether she ought to have been prosecuted under the Espionage Act, specifically