Argument 1: Colin Powell and Condoleezza Rice did it, too!
This is a popular argument from those defending Clinton -- and even Clinton herself.
Sen. Charles E. Schumer (D-N.Y.) offered it as a defense in March: "Colin Powell, I think, did it similar to her. But she’s turning over more documents than anybody else: 55,000. I think she’s come forward more than just about anybody else has." And Clinton herself said that "my predecessors did the same thing."
But they didn't.
As The Post's Fact Checker previously wrote about Clinton's predecessors as secretary of state:
Rice rarely used e-mails while secretary. Powell did use his personal account on the job, and by his own admission no longer has access to the account he used then. The State Department, NARA and Powell’s staff are now working to figure out what e-mails need to be, or could be, retrieved.By the time Clinton took office, federal expectations for archiving electronic records were clearer than they were under Powell’s tenure. That does not absolve Powell for not being able to locate his records a decade later, or for not turning them over to National Archives back then. But it does mean that Clinton was held to a more definitive standard. Moreover, this common defense among her supporters is used to deflect the central issue: that Clinton exclusively used a personal account, and did not provide records until she was requested to, after she left office. That is the most relevant point, so the Democrats earn Three Pinocchios.
The big difference here is indeed that last point: that Clinton had her own private server, and that she used it exclusively. Neither Rice nor Powell did that.
Powell himself and Rice staff members (not Rice herself) received a limited number of emails containing classified information on their private accounts -- two in Powell's case and 10 in the case of Rice's staff -- but neither used private email on the scale that Clinton did. And the number of emails in Clinton's case is much larger because of it: 110 that included classified information, Comey said.
The second major point is that the expectations were different during Powell's and Rice's tenures; Clinton got very clear guidance about use of private email as secretary of state. The State Department's inspector general addressed this point in its May report on Clinton's email practices, according to The Post's Carol Morello and Jia Lynn Yang:
But the report also notes that by the time Clinton became secretary of state, the guidance on email use was much more detailed, suggesting that pointing to Powell is not an entirely fair comparison.
And then there's a third point: Clinton is running for president. If Powell and Rice were doing so, perhaps their email practices and other aspects of their secretary of state tenures would be more closely examined.
Argument 2: R.I.P., the rule of law
It has been clear for a while now that Clinton broke the rules in using her private server. And for some, that's enough to warrant criminal charges.
"Clinton Is Above The Law, So the Law Is Dead," declared a headline on the Blaze, a conservative website.
Sen. Rand Paul (R-Ky.) offered this: "The FBI showed clearly that Clinton violated classified procedures and carelessly, recklessly endangered national security — and did so repeatedly, over 100 times. The FBI then announced she would face no charges. This is an outrage, and the rule of law has been shattered."
But it's worth noting a key point made by Comey: Breaking the rules is not the same as breaking the law. The latter carries with it a higher standard; in this case, it was whether Clinton was "grossly negligent" in using her private server.
"To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences," Comey said. "To the contrary, those individuals are often subject to security or administrative sanctions, but that is not what we are deciding now."
Clinton violated the rules, clearly, and even Comey suggested that she could have endangered national security. From there, it's a judgment call on whether he thinks she did so through gross negligence. Reasonable people can disagree -- and will.
Is being "extremely careless" the same as being "grossly negligent"? That's a valid question. But saying this completely voids the rule of law is making a prediction that is very likely to be proven wrong.
Argument 3: Clinton was exonerated
Democrats, including Clinton, have at times insisted that this is basically much ado about nothing. This takes the form of pointing to Powell and Rice, but it also takes other forms -- such as blanket denial that it's a valid issue and even contending that Clinton has now been exonerated.
"It's over. It's time to move on," said Senate Minority Leader Harry M. Reid (D-Nev.). "Republican attempts to continue their political hit job are just that: They're political."
Sen. Cory Booker (D-N.J.) even suggested before Comey's announcement that Clinton was about as likely to be indicted as any of us are.
But there's a reason Clinton's campaign moved from its early blanket denials into apologizing and emphasizing that she did nothing deliberately criminal: It looked bad.
Comey's announcement Tuesday was not an exoneration of Clinton; it was full of bad news for her and evidence that she messed up. We learned that Comey thinks Clinton was "extremely careless."
It didn't rise to the level of criminal charges, in Comey's estimation, but the idea that this was just some pointless witch hunt was not borne out by the facts. And is it really all that outlandish to say it was a possibility that Clinton could have been charged? It's hard to say this, given Comey's presentation.
Again, it's a judgment call. But suggesting that it's a big nothingburger is a claim that doesn't really hold up right now.
Argument 4: Clinton could be pardoned -- or even pardon herself
The New York Post, in its characteristically subtle way, suggested that President Obama might still pardon Clinton: "Hillary will remain on the hook — unless Obama pardons her."
Relatedly, Rep. Darrel Issa (R-Calif.), in the course of one 10-minute interview Wednesday with Breitbart, suggested that Republicans might need to shut down the government in response to Clinton not being charged and also suggested that Clinton, if elected president, would simply pardon herself.
"We are in a crisis because Hillary Clinton, if the voters do not stop her, will be the next president of the United States," Issa said. "She will, in fact, on Day One say, 'Pardon me,' and she’ll mean it. She’ll have pardoned herself."
This is a very strong charge that involves the ability to see the future in very specific detail. It also is a suggestion with no real founding or precedent.
Could Clinton pardon herself? Of course. It's legal to do so, and there was some talk that her husband could potentially do it back in the impeachment days in the late 1990s. But would she? That's nearly impossible to imagine. Were Clinton to become president, pardoning herself would effectively render her a lame duck. It's also not clear why she would pardon herself preemptively with no actual criminal charges (especially because Attorney General Loretta E. Lynch says there will be none).
This is Issa propping up a bogeyman disguised as a prediction.
As for Obama pardoning her: There is, of course, precedent for a president pardoning another president. But that was pardoning a former president (Richard Nixon) who wasn't about to begin a four-year term. Obama pardoning Clinton, like Clinton pardoning herself, would basically nullify her political capital -- not to mention reflect poorly on Obama.
Things can change, but this is all wild speculation right now.