Andrew McCarthy of National Review Online contends that the U.S. Justice Department inspector general’s recent report on the Hillary Clinton email server investigation omits a key point.
Despite the sprawl of Justice Department inspector general Michael Horowitz’s 568-page report on the Clinton-emails investigation, there is precious little discussion of the most important issue: The Justice Department and FBI’s rationale for declining to prosecute Hillary Clinton. I believe this is intentional. The inspector general’s message is: “Despite pervasive political bias and investigative irregularities, which I have comprehensively documented, rest assured that nothing too terrible happened here.”
That silver-lining version of this dark spectacle could not have survived a searching analysis of the decision not to indict.
In explaining themselves to the IG, Obama Justice Department and FBI officials contended that the make-or-break issue in the case was whether they could prove mens rea — criminal state of mind. In this instance, that involved former secretary of state Clinton’s knowledge and intent regarding the unauthorized transmission and retention of classified information. Investigators say it dawned on them at a very early stage that they could not. Hence, they urge, their decisions to allow the election calendar to impose a time limit on the investigation, to limit the amount of evidence they considered, to be less than aggressive in obtaining evidence, and to draft an exoneration of Clinton months before interviewing her (and other key witnesses), were entirely reasonable.
Yet their analysis left out the best intent evidence, namely, Clinton’s willful setting up of a private, non-secure server system for all official business. …
… Horowitz’s fleeting conclusion that the decision not to charge Clinton was rational and not necessarily motivated by political considerations hinges on the assumption that the intent evidence truly was as sparse as the FBI and Justice Department described it. Of course the decision to decline prosecution was defensible, if not incontestable, if one accepts that false premise. And Horowitz does not just accept the premise; he treats it as a background assumption, writing as if there’s no other conceivable way to look at the case.