The FBI’s investigation of Hillary Clinton’s email server, and her practices while serving as Secretary of State, has raised many legitimate questions by a great many people. Those who have security clearances and handle classified material know very well that their hide would be fried if they did a fraction of what the FBI Director said Hillary did as Secretary of State. Aside from the partisan politics involved and the accusations presented by the RNC, many folks are wondering if the law really means what it says. The simple answer is, “Well, most of the time.” Clear as mud? Yes, it can be ambiguous and confusing at times. The reason is rooted in the justice system as a whole. Let me offer a short explanation based on my experience as a law enforcement officer.

Before a law is written, there is “legislative intent” that arises out of a perceived need by the political bodies that propose and pass the laws. They form a viewpoint that is sifted down to a written declaration reflecting the specific purpose they have in mind. The word crafting is normally the subject of debate and often gets beat up during the whole process.  As a result, the quality of the final product varies. In any case, the law is codified and published as a statute with “specific wording.”

The law is then enacted and made available to the enforcement organizations that have jurisdiction over its implementation. There is a certain amount of interpretation involved, but they normally enforce the statute as it is written, with application governed by the “legislative intent” or “spirit of the law” in mind.

The cases that involve violations of a particular law are investigated, documented and submitted to the appropriate prosecutor’s office for review and subsequent presentation in court. Here, the use of the law undergoes another round of interpretation that is subject to “prosecutorial discretion and application.” It’s the prosecutor who decides whether to take the case to court and how to present it. Indeed, they decide if the law will ever see the light of day and be enforced in the matters presented to them.

If it passes that process, it then goes to the court. As everyone knows, lawyers and judges descend on the case and argue all aspects of the statute’s implementation and constitutionality. The consequences of judicial review are almost endless. The law itself could be thrown out, halting all further use by the system, or otherwise modified permanently for the future. “Precedent” is established through “case law,” representing the judge’s opinion. Of course, that is always open to appeal all the way to the United States Supreme Court…with additional modifications along the way.

From the beginning of the process to the end, and for as long as the statue remains on the law books, it’s subject to continued and perpetual interpretation and modification based on what is considered “customary and common practice” for the jurisdiction involved. And, despite routine denials by officials, there are always “political considerations” at play…even in minor cases. Some laws remain on the books without ever being enforced…for decades.

So, does the law always mean what it says? Yeah, for the most part. But, being a law is not for the faint of heart. It is a product of faulty human beings and is administered by flawed men and women. By definition, therefore, it is not perfect. Despite the importance of the “rule of law” to our society and form of government, it makes sense to temper our expectations.

“Where is the wise person? Where is the teacher of the law? Where is the philosopher of this age? Has not God made foolish the wisdom of the world?” (1 Corinthians 1:20)

In the case of this latest investigation involving Hillary Clinton, a number of these elements have, apparently, come into play. The FBI Director, James Comey, explained that he did not recommend prosecution of Ms. Clinton due to a lack of evidence regarding criminal intent. Even though the “specific wording” of the applicable statute reflected the “legislative intent” to make it illegal to mishandle classified material either by criminal intent or negligence, it has never been the “customary and common practice” to file charges on negligence alone. Instead, by “prosecutorial discretion and application,” prosecution has been reserved for those cases involving clear evidence of criminal intent.

The thing that makes this case different from other similar cases with lower level employees of the State Department is that those lower level people are dealing with confidential material that is limited in scope. So when you talk about criminal prosecution…a higher level of jeopardy for the “suspect”…historically, they haven’t bothered to prosecute on mere “negligence.” Instead of resorting to criminal charges, they have dealt with those lower level violators administratively and imposed disciplinary measures up to, and including, termination.

As Secretary of State, Clinton had access to a vastly broader spectrum of classified material…the mishandling of such being much more serious. According to Comey, there was a plethora of evidence indicating clear negligence. But when you’re looking for “precedent,” there are no apparent former cases where mere negligence triggered “criminal prosecution.” Therefore, if you apply the same criteria for filing criminal charges against Clinton as you would to “Joe Schmuck,” criminal charges would not apply. That was Comey’s reasoning…as I understood it. For someone in his position, “precedent” is like a warm blanket when left out alone on a cold political night, and is a hell of a lot safer than venturing into unchartered judicial territory…especially when the prosecutor excuses herself from the normal process by throwing it all into your lap.

The likely destruction of evidence by deleting mountains of records was sidestepped and, apparently, considered just part of the intent of establishing a private server in the first place. People have dismissed it as “discretion exercised at the high levels of government.” Others have called it “privilege of the elite.” Neither is particularly palatable in this particular case…no matter what political orientation is embraced by the observer. But, there you go.

Of course, to insist that a case focused on a former First Lady, Senator, and Secretary of State who is a current presidential frontrunner doesn’t involve “political considerations” of any kind is just…well…incredulous.

Photo by © Jonathan Ernst / Reuters