But even those who rooted for this outcome, whether out of support for the Democratic nominee or opposition to her Republican rival, should find the "context" of Clinton's behavior damning, not exculpatory.
Her apparent intent in setting up a private server was to subvert the
Compare her motives to those of whistle-blowers such as
Only a longstanding member of the establishment like Comey could believe that Clinton's selfish, careerist intent was more excusable, if not more elevated, than Drake, Manning and Snowden's selfless and self-endangering behavior.
As for "how similar situations have been handled," it’s true that members of the Washington insider club have, like Clinton, received the kid-glove treatment. Neither
What about ordinary citizens?
"Had someone who was obscure and unimportant and powerless done what Hillary Clinton did," Glenn Greenwald wrote recently, "recklessly and secretly install a shoddy home server and worked with top secret information on it, then outright lied to the public about it when they were caught – they would have been criminally charged long ago, with little fuss or objection."
He's right. Consider Bryan Nishimura, a Navy reservist from Folsom, Calif. While deployed in Afghanistan, he downloaded classified briefings onto personal electronic devices. Later, when FBI agents searched his home, they discovered that he was illegally storing state secrets, but there was no evidence that he intended to distribute them, according to the Associated Press. Nevertheless, he was prosecuted, convicted and sentenced to two years' probation and a $7,500 fine. "Ordered to surrender his security clearance," AP reported, "he is barred from seeking a future security clearance."
The perverse disparities in the treatment of whistle-blowers and low-ranking soldiers, on one hand, and more prominent mishandlers of classified information, on the other, is a perhaps inevitable consequence of two factors: a system of state secrets so over-inclusive that it is routinely violated by well-meaning people with no intention of harming their country; and a high degree of prosecutorial discretion, predictably exercised in a way that protects those with power.
The fact that the political elite and the hoi polloi operate under different rules would be bad enough if it merely led to unfair outcomes in individual cases. These disparities, however, help determine the intelligence that makes its way to the public. Powerful insiders can simultaneously hide damaging information under "top secret" stamps and leak favorable information with impunity. Double standards also undermine confidence in the fairness of what the presumptive Republican nominee has taken to calling a "rigged system."
Of course, as Bloomberg's Megan McArdle pointed out, Donald Trump would offer no relief. "How many people are going to think that if Trump had been in Clinton's place, he would have said: 'Heavens no, we can't go having a private server! That would be unethical and strictly against the rules! Put my emails on the State Department system so that it will be open to FOIA!'"
No matter who wins in November, the executive branch will exploit its wide discretion on this subject and the power it affords. It’s therefore Congress’ job to improve on the status quo by addressing over-classification, passing new protections for whistle-blowers and repealing the
Conor Friedersdorf is a contributing writer to Opinion, a staff writer at the Atlantic and founding editor of the Best of Journalism, a newsletter that curates exceptional nonfiction.
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