GOP's 'Emailgate' Response Shows How It Ended Up With Trump

Like Trump, congressional Republicans don't seem interested in understanding how the law works

Donald Trump said it's evidence of a "rigged system" that Hillary Clinton was not indicted over her use of a private email server while secretary of State. Credit: Scott Olson/Getty

Republicans have spent the Obama years encouraging disdain for the government by endlessly accusing public officials and even the president himself of bad faith, incompetence and lawbreaking. After hearing repeatedly how worthless, corrupt and illegitimate the government is from the very people who work for it, a significant portion of the public sees Donald Trump's lack of interest in how the government works or what the law is as a positive thing.

The Republican response to the non-indictment of Hillary Clinton last week is a particularly stunning example of the kind of theatrics that created the conditions for the rise of Trump.

After FBI Director James Comey announced that the FBI did not recommend indicting Clinton for any crime in connection with her use of a private email server as secretary of State, explaining that "no reasonable prosecutor" could bring a case, Republicans rushed to play backseat lawyer.

Paul Ryan said Comey's decision "defied explanation" despite the lengthy and unprecedented explanation Comey provided for the benefit of non-lawyers like Ryan. The FBI's massive investigation revealed evidence of carelessness and an inadequate security culture in the State Department, but it did not reveal evidence sufficient to prove a crime.

It is unethical for a prosecutor to bring a case unless they believe they can prove every element of the crime beyond a reasonable doubt. The Espionage Act, like most criminal statutes, requires a prosecutor to prove the accused had a specific mens rea, or intent to commit a prohibited act. Comey found no evidence that Clinton deliberately intended to expose classified information. Nor did he think it appropriate to charge her under an unclear provision of the act that prohibits permitting classified information to be "removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed" through "gross negligence." Gross negligence is a legal term of art that describes a state of mind that is short of deliberate intent, but it still entails a conscious decision not to avoid a known danger. And it isn't clear that provision, which has only been the subject of one case in nearly a century, even applies. Clinton may not have "removed" or "delivered" classified information to an unauthorized person by using a private server to email authorized persons like staff with security clearances. The FBI lawyers looked at the statute and the caselaw interpreting it and determined it would not be appropriate to prosecute.

But Republicans don't seem interested in understanding what the law is. Despite legal experts having predicted there were no grounds to prosecute Clinton, congressional Republicans responded to Comey's announcement by calling him to testify at an "emergency" hearing, in which they second-guessed his legal conclusions, impugning the integrity and professionalism of the lifelong Republican a number of them had recently praised. Comey patiently explained the principle of mens rea and the caselaw to non-lawyer representatives professing to be "mystified," but the circus has just begun.

At least five congressional committees are investigating the decision not to charge Clinton. Republicans railed at Attorney General Loretta Lynch for not indicting Clinton at a hearing on the operations of the Justice Department Tuesday. Rep. Darrell Issa has threatened to shut down the government if Obama won't make Lynch prosecute. Two Congress members have requested Clinton be investigated for perjury based on her testimony that she did not email information marked classified. As Comey explained at the hearing, Clinton in fact sent three emails that contained the marking "(C)" in the text, which she may not have realized were classified because they lacked the header that indicates information is classified. Perjury entails knowingly making a false statement under oath — Comey has already indicated there isn't evidence that Clinton knew she'd sent information with classification markings in it. But that isn't stopping Reps. Jason Chaffetz and Bob Goodlatte (one of whom is a lawyer, and both of whom should be able to read a statute) from demanding another inevitably fruitless investigation in order to vilify their opposition.

Congressional Republicans have been slightly more restrained than Trump, who called the non-indictment evidence of a "rigged system," but the message they're sending once again is: Everyone in government is corrupt or incompetent. They can say the other guys are the problem, but by making endless promises they can't keep, on everything from nailing Hillary to repealing Obamacare, they demonstrate to Trump-inclined Americans that no one in government gets anything done.  

If legislators genuinely believe that what Clinton did should be a criminal offense, they should legislate. The Espionage Act is a mess that needs to be modernized to make what exactly it prohibits clearer. Congress could also amend it so prosecutors only have to prove ordinary negligence — or even make mishandling classified documents a strict liability violation, which means prosecutors wouldn't need to prove any intent at all. But legislators probably don't actually want an intent standard low enough to cover Clinton's conduct, because those legislators also handle classified documents. In particular, Jason Chaffetz, who chaired the hearing, should not want to see the standard lowered, given that he has put his Gmail address on his business card, been chastised by Homeland Security for leaking sensitive information and blew the cover of CIA operatives at one of the many hearings of the Benghazi witch hunt.

So rather than legislating, Republicans are suggesting their strongly held conviction that Clinton is corrupt and gut feelings that using her own server should be a crime are enough for a prosecution. This is a rejection of the rule of law and the right to due process, and it legitimizes Trump's authoritarian message that he could do whatever he wants as president because the law isn't a serious constraint. If Trump knows someone is guilty, he won't let those pesky rules about reading Miranda rights or the presumption of innocence until proven guilty prevent them from being imprisoned or killed. If he determines banning Muslims or silencing the press is necessary, why should the courts be able to stop him? Republicans have been telling us the law is infinitely malleable and everyone in government is acting in bad faith. To someone who accepts that premise, it's not so unreasonable to think only a strongman Trump, uncorrupted by government service and unbowed by legal niceties, can do what needs to be done.

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