1. Moral sanctions and legal sanctions
Morality and law are two powerful tools that regulate human life in society. They are powerful because they are provided with sanctions which are applicable if one or more of their precepts norms or rules are not respected either through action or inaction namely if they are broken.
There is an important difference though between moral sanctions and legal sanctions. Moral sanctions consist of public blame opprobrium castigation stigma criticism censure and others. Legal sanctions consist of death penalty imprisonment probation fines restricting or prohibition of rights and others. Both types of sanctions moral and legal are harsh but legal sanctions are much harsher: they can physically touch both individuals and their properties while moral sanctions can touch primarily the individuals mental or conscience.
Therefore in case of an act of violence or repression individual group-related or political -- moral sanctions alone are insufficient to constrain the unjust act. These moral sanctions coming from society as a sum of individuals must be backed up by legal sanctions coming from the societys repression apparatus.
2. Hillary Clintons Filegate Case
The FBI has been investigating Mrs. Hillary Clinton (former First Lady Secretary of State and presidential candidate) for sending and receiving top secret information over her personal email system. On Tuesday July 5 2016 a day after the National Independence Day of Fourth of July and weeks before both political parties national conventions (Republican and Democrat) the then FBI director James Comey said that he would not recommend charges against Hillary Clinton over her use of private email servers while Secretary of State but he criticized her for
extremely careless" behavior.
In his own words: Although we did not find clear evidence that Secretary Clinton or her colleagues
intended emphases added by both Comey and the author of this article to violate laws governing the handling of classified information there is evidence that they were extremely careless in their handling of very sensitive highly classified information." And I will go no further.
I wont mention that over 100 emails of the over 30000 emails that Hillary Clinton provided for the investigation contained information considered classified when they were sent and other 2000 emails were deemed classified after being sent. Nor that she deleted emails to hide them from investigators. Nor that hostile actors like the notorious Romanian hacker Marcel Lazăr known as Guccifer -- might successfully have broken into her emails.
Nor that Hillary Clintons aide Huma Abedin admitted in her deposition taken before July 4 2016 that Clinton destroyed on more than one occasion" public records -- like burning Abedins schedules -- while she was Secretary of State. Nor that former President Bill Clinton and the then U.S. Attorney General Loretta Lynch an official in charge of federal prosecutors had a June 27 2016 Monday night not preplanned" 20-minute meeting on a private plane parked at the Phoenix Airport in Arizona.
Back in time in March 2015 it became publicly known that Hillary Clinton as a Secretary of State (between 2009 and 2013) had exclusively used her private email server for official communications rather than the Department of State email accounts maintained on federal servers including thousands of emails retroactively marked classified" by the Department of State.
In July 2015 inspectors general from the Department of State and the intelligence community referred the case to the Department of Justice. Their
memo did not suggest a criminal referral but a security referral made for counterintelligence purposes following their statutory obligation to inform the intelligence community about any potential security breach; namely that Hillary Clinton held classified information on her email server located outside secure government facilities.
In August 2015 the FBI entered the case. A number of about 50 agents were detailed to the investigation. In May 2016 an 83-page Department of States Office of the Inspector General report was released about the departments email practices including Clintons. On Tuesday July 5 the FBI director stated Clintons extremely careless" behavior in handling her email system but recommended no criminal charges against her. On Wednesday July 6 Attorney General Loretta Lynch announced that no charges would be filed.
3. Extremely careless" behavior is still criminal behavior
Let us come back to the expression extremely careless." What does this expression mean? Is it incorporated in any legal statute or code? If it is what is the legal sanction attached to it? And if this expression is nowhere to be found in any legal statute or code then consequently it means that this is NOT a legal expression. Following this rationale this means that the expression is a moral one.
But the FBI is a criminal justice agency whose job is to conduct investigations and propose legal resolutions. The FBIs job is NOT to pass moral judgments. This is an attribution belonging to organizations having a moral authority like the Church public opinion a social group family or a wise man. It appears that the FBI is trying to have the cake and eat it too. In other words Mr. James Comey tried to play Pontius Pilate here washing his hands of an embarrassing -- yet another Hillary Clintons Filegate case.
Non-jurists (joined by Mr. Comey for convenience reasons) often believe that extremely careless" activity contains no criminal intention." So where is no intention there is no criminal liability right? Wrong! Criminal liability covers several forms of guilt and intention is just the gravest of them. Other forms of criminal guilt include negligence gross negligence (recklessness) and exceeded intention (preterintention" in legalese).
For instance the 18 USC 793 statute does not require intent for a felony prosecution but only gross negligence. Does this cover the extremely careless expression that the former FBI director Comey was talking about?
Let us take them in reverse order and exemplify. To the case in point this means that for:
(a) Intention: Mrs. Clinton acted knowingly and purposely (direct intention) or knowingly but not purposely (indirect intention) to pose a national security risk; the FBI says thats not the case.
(b) Preterintention (exceeded intention): Mrs. Clinton acted knowingly and purposely just for storing classified material and information into a private email account but negligently or recklessly posing a national security risk; the FBI says thats not the case either.
(c) Gross negligence (recklessness) or negligence: Mrs. Clinton acted recklessly or negligently in storing classified material and information into a private email account therefore posing a national security risk; the FBI points out the expression extremely careless." Bingo! We are here! Still in the criminal perimeter!
So what are we talking about here? Why no criminal charge has been officially made? This is NOT a moral issue as Mr. Comey wanted us to believe (he DID NOT represent a moral authority but he DID represent the legal authority).
We all know by now that the person responsible with changing Comeys language from grossly negligent" to extremely careless" was
Peter Strzok the second-highest ranking counterintelligence agent at the FBI (a proven Clinton fan and Trump hater).
The conclusion is clear. The legal system has been rigged by the political system. Again. Morality has been used shamelessly as a front for law. And there is nothing the American people can do about it.
Unless of course the current Attorney General recovers from his coma and has the epiphany that he is in fact the American peoples advocate.
NOTE - A version of the article was published previously in CARIBBEAN NEWS NOW!.
Tiberiu Dianu has published several books and a host of articles in law politics and post-communist societies. He currently lives and works in Washington DC and can be followed on MEDIUM.
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