Yesterday James Comey, the director of the Federal Bureau of Investigation, announced that the organization could not recommend that the Department of Justice bring criminal charges against Hillary Clinton over her use of a personal email server during her tenure as the Secretary of State. Today, Attorney General Loretta Lynch announced that the investigation would be closed with no criminal charges. The response in the media and among public figures was mostly split by political party, with Republicans continuing to exhibit outrage and Democrat Clinton supporters taking the opportunity to say, “I told you so.”

The FBI’s findings do show that Clinton lied about, or in some cases merely misrepresented, the kinds of information that was and was not being transmitted via the personal email server. Although she did use the email server to transmit classified information, the FBI found that she did not send that information to anyone who wasn’t authorized to see it. For Washington D.C. based defense attorney Abbe Lowell, that’s a significant distinction. Last year Lowell published a letter to the Department of Justice expressing frustration over the fact that his client Stephen Kim was convicted of felony charges and sent to prison for thirteen months after leaking classified documents to Fox News reporter James Rosen, while General David Petraeus did the same thing, leaking documents to his biographer and lover Paula Broadwell, and was only convicted of a misdemeanor with no jail time.

In a piece written yesterday for The Intercept regarding Clinton’s emails, lawyer and writer Glenn Greenwald referenced Lowell’s letter in an effort to examine the uneven application of justice to people who violate laws that govern the transmission of classified information. We spoke to Lowell over the telephone in order to give him a chance to respond, and to get his thoughts on the Clinton case.


What was your reaction to the FBI’s announcement yesterday about the Clinton emails?

FBI Director Comey is 100 percent correct on his conclusion. The common denominator of every case that has ever been brought for the unauthorized disclosure of classified information has the requirement that the individual under investigation intentionally disclosed the material to someone not authorized to receive it, such as a journalist, a foreign country, or a government contractor. It’s been clear from the beginning that whatever information she had distributed was being distributed to her staff and others in the government, people who are authorized to receive it. And that feature separates her situation from every one of those cases that people are raising. It separates it from Petraeus. Each of those people, including clients I’ve represented, were accused of disseminating to people that were not authorized to receive it. That’s why the director’s conclusion on the law is right. No reasonable prosecutor would have brought this case.

Glenn Greenwald mentioned your letter regarding General Petraeus last year in a piece about the uneven application of the law where privacy and national security are concerned. Do you see that as being relevant here?

On one level, everybody goes, “Well wait, she’s being looked [at for] disseminating classified information, and Ed Snowden is looked at for disseminating classified information, and General Petraeus is investigated for disclosing classified information,” and you see how uneven it is. Well there is definitely selective prosecution in the area of classified information cases. No better example than that is the way that the Justice Department handled General Petraeus, and handled my law firm’s client Stephen Kim, formerly of the Department of State. Their conduct is very comparable. One’s charged with a felony and has to do jail time, the other one is given a misdemeanor and nothing. There is definitely uneven treatment in the procedures of how these cases are pursued, but anybody would be wrong to say that the uneven treatment was between Secretary Clinton and any of those people, because that fundamental characteristic—of her not disclosing information to biographers, girlfriends, journalists, government contractors, foreign countries—distinguishes it from all of the other cases.

To examine this question from the other side, then, how do you feel this case would have been handled were Secretary Clinton not running for President? Or if it had been someone of a lesser political stature?

This would not have taken as long, and it would not have been as public.