There is no way of getting around
this: According to Director James Comey (disclosure: a former colleague and
longtime friend of mine), Hillary Clinton checked every box required for a
felony violation of Section 793(f) of the federal penal code (Title 18):
With lawful access to highly classified information she acted with gross
negligence in removing and causing it to be removed it from its proper
place of custody, and she transmitted it and caused it to be transmitted to
others not authorized to have it, in patent violation of her trust.
Director Comey even conceded that former Secretary Clinton was “extremely
careless” and strongly suggested that her recklessness very likely led to
communications (her own and those she corresponded with) being intercepted by
foreign intelligence services.
Yet, Director Comey
recommended against prosecution of the law violations he clearly found on
the ground that there was no intent to harm the United States.
In essence, in order to
give Mrs. Clinton a pass, the FBI rewrote the
statute, inserting an intent element that Congress did not require.
The added intent element, moreover, makes no sense: The point of having a
statute that criminalizes gross negligence is to underscore that government
officials have a special obligation to safeguard national defense secrets; when
they fail to carry out that obligation due to gross negligence, they are guilty
of serious wrongdoing. The lack of intent to harm our country is irrelevant.
People never intend the bad things that happen due to gross
negligence.
I would point out,
moreover, that there are other statutes that criminalize unlawfully removing
and transmitting highly classified information with
intent to harm the United States.
Being not guilty (and, indeed, not even accused) of Offense B does not
absolve a person of guilt on Offense A, which she has committed.
It is a common tactic
of defense lawyers in criminal trials to set up a straw-man for the jury: a
crime the defendant has not committed. The idea is that by knocking down a
crime the prosecution does not allege and cannot prove, the defense may confuse
the jury into believing the defendant is not guilty of the crime charged.
Judges generally do not allow such sleight-of-hand because innocence on an
uncharged crime is irrelevant to the consideration of the crimes that actually
have been charged.
It seems to
me that this is what the FBI has done today. It has told the
public that because Mrs. Clinton did not have intent to harm the United States
we should not prosecute her on a felony that does
not require proof of intent to harm
the United States. Meanwhile, although there may have been profound harm to
national security caused by her grossly negligent mishandling of classified
information, we’ve decided she shouldn’t be prosecuted for grossly negligent
mishandling of classified information.
I think
highly of Jim Comey personally and professionally, but this makes no sense to me.
Finally, I was
especially unpersuaded by Director Comey’s claim that no reasonable prosecutor
would bring a case based on the evidence uncovered by the FBI. To my mind, a
reasonable prosecutor would ask: Why did Congress criminalize the mishandling
of classified information through gross negligence? The answer, obviously, is
to prevent harm to national security. So then the reasonable prosecutor
asks: Was the statute clearly violated, and if yes, is it likely that Mrs.
Clinton’s conduct caused harm to national security? If those two questions
are answered in the affirmative, I believe many, if not most, reasonable
prosecutors would feel obliged to bring the case.
___________________
POWERLINE
Alternative Headline: “FBI Declares Hillary Clinton to be Complete Liar”
By Steven Hayward
I don’t expect we’ll
see that headline, but Chris Cillizza of the Washington Post comes
close to delivering this judgment:
Here’s
the good news for Hillary Clinton: The
FBI has recommended no charges be brought followings its investigation
of the former secretary of state’s private email server.
Here’s
the bad news: Just about everything else.
FBI
director James Comey dismantled large portions of Clinton’s long-told story
about her private server and what she sent or received on it during a stirring
15-minute press conference following which he took no questions. While Comey exonerated Clinton legally speaking, he provided
huge amounts of fodder that could badly hamstring her in the court of public
opinion.
Most
importantly, Comey said that the FBI found 110
emails on Clinton’s server that were classified at the time they were
sent or received. That stands in direct contradiction to Clinton’s
repeated insistence she never sent or received any classified emails. And,
it even stands in contrast to her amended statement that she never knowingly
sent or received any classified information. . .
Comey
said that Clinton had used not one but multiple private email servers
during her time at State. He said that Clinton used multiple emails devices
during that time. (She had offered her desire to use a single device for
“convenience” as the main reason she set up the private server.) He noted that
the lawyers tasked by Clinton with sorting her private emails from her
professional ones never actually read all of the emails (as the FBI did
in the course of its investigation). . .
Cillizza’s
conclusion:
It’s
hard to read Comey’s statement as anything other than a wholesale rebuke of the
story Clinton and her campaign team have been telling ever since the existence
of her private email server came to light in the spring of 2015.
She did send and receive classified emails. The setup did
leave her — and the classified information on the server — subject to
a possible foreign hack. She and her team did delete emails as
personal that contained professional information.
About those thousands
of “private” emails Hillary deleted, one of our readers sensibly asks:
One
issue I have not seen addressed in the media is how a busy person could have
half of her emails deemed as personal . If you are busy maybe 5 to 10
percent is a stretch but 50 percent either means she was not working at her job
or hiding something probably as a result of Clinton Foundation connections – we
may never find that out but any busy person understands the 50 percent is just
not possible and suggests only one reasonable conclusion.
