When I was practicing law, I often heard people complain about judges and prosecutors when those officials reached conclusions with which they disagreed. In most instances, the complaints were based on a lack of understanding of the facts of the case, the legal rules involved, or both. That was particularly true of criminal accusations.
Let’s say you are texting and driving. You know better; Public Service Announcements tell you how dangerous it is. Your mother tells you how dangerous it is. But your state has no law against it, and you think you’re in control. While you are texting, you crash into another car, injuring a passenger and totaling the vehicle.
Or let’s say you made the potato salad for the family’s picnic. It’s a really hot day and the sun is beating down. You know that foods with mayonnaise shouldn’t be left in the heat, but you are tending to other things. When everyone finally sits down to eat, several people get violently ill and it’s traced to the spoiled mayo.
Or let’s take a far more serious situation: you are one of those “good guys” with a gun. You bought it legally and have a permit to carry it. You have it in a holster, and for some reason, when you sit down, it discharges, killing a bystander.
In each of these scenarios, you have been responsible for harm. In none of them have you committed a crime, because criminal acts require something the law calls mens rea–criminal intent. In order for the state to charge you with a crime, it must have evidence that you intentionally committed a criminal act. Negligence and stupidity are not crimes.
That is not to say that your actions cannot be punished. In each of my examples, the persons harmed can bring civil actions against the negligent person who caused the harm, and can recover damages. In addition, your actions can be reported by the media, censured by your neighbors and provide reason for your boss and others to lose confidence in your judgment.
The FBI investigated Hillary Clinton’s use of her own email server, and found no evidence of intentional wrongdoing sufficient to charge her with a crime. The investigation found (and severely criticized) carelessness–both in Clinton’s handling of her emails and in what the agency characterized as the “culture” of the State Department. The conclusion was not that she hadn’t done anything wrong; the conclusion was that the wrong was not criminal in nature. (Click here for a more extensive explanation of the legal standards and relevant statutes.)
Individual voters can–and will–decide for themselves whether they think this particular breach of judgment makes Clinton unfit to be President. If she weren’t running against a certifiable psychopath, it might well cost her the election; but even if it doesn’t, even if she wins handily, it will cost her significant political capital (indeed, it already has) and will give additional ammunition to those who despise her.
Although it does not excuse her breach, the investigation’s discovery that many other State Department officials (including but not limited to Colin Powell and Condoleeza Rice) have used and continue to use personal servers because of the ponderous nature of the “official” system should lead to a formal review of the agency’s technology systems, and to an effort to improve the State Department’s evidently unwieldy system.
Rather than Congressional action that might reduce incentives to bypass the rules, however, we have Paul Ryan’s announcement that the GOP will now “investigate” the FBI for reaching a conclusion partisans dislike.
The FBI investigation was conducted by a Republican appointed by George W. Bush, a man with a reputation for independence and unimpeachable ethics. Ryan’s willingness to besmirch that reputation and impugn the credibility of the FBI in order to make political points is something we might expect from Donald Trump, but is exceedingly disappointing (albeit not surprising) coming from the Speaker of the House.
At some point, it would be nice if our political actors focused upon making government work better, and left toxic gamesmanship behind. But I’m not holding my breath.