Andrew McCarthy: The DOJ's disparate treatment of Trump and Clinton

National Review’s Andrew McCarthy has a piece today which challenges the claim that Donald Trump got a pass from the DOJ/FBI in 2016 while Hillary Clinton was treated too harshly, possibly even costing her the election. As McCarthy points out, a close review of the facts suggests Hillary was repeatedly treated with kid gloves in instances where a more aggressive FBI might have nailed her or her associates. Consider the way evidence of gross negligence by Clinton was set aside on the ground that “no reasonable prosecutor” would pursue such a case. But when it came to Trump’s associates, the Logan Act, which has never resulted in a conviction in 219 years, was considered grounds for an investigation:

Notwithstanding that Mrs. Clinton’s actions were intentional and willful, the Espionage Act does not require proof of that mental state. Despite considerable evidence that she obstructed investigations, it’s not necessary to prove that either. Nor to establish disloyalty or any intent to harm the United States. To avoid indicting Mrs. Clinton, the FBI and Justice Department ignored the statute that has been on the books for a century and substituted an impossible-to-prove statute of their imagination.

Now, let’s consider a statute that’s been on the books for over two centuries, the Logan Act.

Despite the absence of any evidence that the Trump campaign conspired in Russia’s espionage, the Obama Justice Department — led by then–acting attorney general Sally Yates — relied on the Logan Act to conduct a criminal investigation of General Michael Flynn, a 30-year decorated combat veteran. A key Trump campaign adviser who played a central role in the Trump transition and was designated as the incoming national-security adviser, it was Flynn’s job to communicate with such foreign counterparts as Russian ambassador Sergey Kislyak, a Washington fixture whose dance card has never been short on Democrats. Flynn was also an intense Obama critic, and the outgoing administration understood that he was preparing to reverse Obama policies.

The Obama Justice Department and FBI investigated Flynn — including an ambush interview — on the theory that his discussions with Kislyak and other diplomats violated the Logan Act. Currently codified as Section 953 of the federal penal code, this statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States” — an impossibly vague term that probably means permission from the executive branch. The Logan Act is patently unconstitutional, but no court has had the opportunity to invalidate it because, to borrow a phrase, no reasonable prosecutor would bring such a case.

So the view of what constitutes a “reasonable prosecutor” seems to vary depending on who is the target. Just as difficult to explain is the disparate treatment of Trump and Clinton allies when it comes to being straight with the FBI:

Speaking of lying to the FBI, Mrs. Clinton — during the brief interview the FBI conducted after Director Comey’s speech exonerating her was already written — told agents she did not know what the designation “(C)” in classified documents meant. She claimed to have assumed it might have had something to do with putting paragraphs in alphabetical order, notwithstanding the absence of any (A), (B), or (D) paragraphs.

Patently, this was a false statement: Mrs. Clinton, who was in the Senate for eight years, was indoctrinated in classified-information practice on becoming secretary of state, a position in which classified documents abound. She signed an acknowledgment that she understood her obligations and had read the relevant executive orders on classification — the main one had been issued by her husband. (C), which stands for confidential, the lowest level of classification, is a ubiquitous marking in classified documents, well known to officials with security clearances. But Mrs. Clinton had falsely told the public she had never sent or received any documents “marked classified,” so she needed to pretend that she didn’t know what the classified markings meant.

She wasn’t prosecuted, of course. She got to run for president. Her underlings weren’t prosecuted either — Clinton confidants Cheryl Mills and Huma Abedin both told the FBI they were unaware that Clinton was using a private server while they worked for four years as her top State Department staffers; as the Daily Caller’s Chuck Ross points out, Mills explicitly asked Abedin about the server in a 2010 email…

That’s not quite the way things go in the Trump–Russia investigation. General Flynn and three other subjects — George Papadopoulos, Richard Gates, Alex van der Zwaan — have been prosecuted for making false statements in FBI interviews. None of the false statements alleged had anything to do with Russia’s cyber-espionage attack on the 2016 election, the ostensible subject matter of Mueller’s investigation.

The treatment of Mills, in particular, has always bothered me. Mills was so much in the driver’s seat during her FBI interview that she actually walked out when the FBI broached a topic that her attorneys had agreed was forbidden:

Near the beginning of a recent interview, an FBI investigator broached a topic with longtime Hillary Clinton aide Cheryl Mills that her lawyer and the Justice Department had agreed would be off limits, according to several people familiar with the matter.

Mills and her lawyer left the room — though both returned a short time later — and prosecutors were somewhat taken aback that their FBI colleague had ventured beyond what was anticipated, the people said.

Even when she came back, Mills lawyer objected constantly that questions she was asked were “beyond the scope.” You can read the transcript for yourself here. I counted 120 “beyond the scope” objections before I gave up. Mills claimed during her deposition that she knew about Hillary’s private account but not about the private server. During the entire time she worked as Hillary’s Chief of Staff at the State Department, Mills claimed she knew nothing. After Hillary left the Department, Mills immediately became Clinton’s lawyer again. Conveniently, that means anything Mills may have learned about the private server after that point is shielded by attorney-client privilege. So Mills either knew nothing about the central issue in the investigation or couldn’t be asked. But again, there’s contemporaneous email evidence Mills was lying about what she knew and when she knew it.

There’s even some second-hand evidence that Mills herself thought the private server was a major political problem for Hillary. A hacked and leaked email exchange between CAP’s Neera Tanden and John Podesta went like this:

Tanden wrote to Podesta saying, “Do we actually know who told Hillary she could use a private email? And has that person been drawn and quartered?” Tanden added, “Like whole thing is f**king insane.”…

The following day, July 25th, Podesta sent two responses. In response to the question about who was responsible, Podesta wrote, “Don’t you think Cheryl?” That’s obviously a reference to Clinton’s lawyer and confidante Cheryl Mills.

Podesta sent a second email to Tanden which added, “At least we now know why Cheryl didn’t want her to run.” Again, it’s clearly a reference to Cheryl Mills and Podesta’s message implies that one of Clinton’s closest advisers thought she should not run for president again in 2016. In the context of the exchange, the suggestion is that the burgeoning email scandal explains Mills’ reluctance.

The FBI let Mills skate on her obviously false statements rather than charging her and forcing her to cooperate in the investigation. They also let Clinton herself skate on the classified markings. That’s in sharp contrast to the harsh treatment of Michael Flynn and Paul Manafort.