To my chagrin, it appears the many who months ago said
that the fix was in and Hillary Clinton would never be indicted were correct.
The day after Independence Day, FBI Director James Comey gave a
long address concerning his agency’s findings on Clinton’s handling of
classified materials in which she sent
and received Secret and Top Secret information from her unclassified, unsecured
e-mail account. For several minutes, it
seemed that the Director was building a case for a criminal prosecution
to the Justice Department. But at the
end of his comments, Comey stated that the FBI could not find indication of “intent
to harm the United States”. Thus, Director
Comey recommended against prosecution of the law violations.
While the substantial unlikelihood that the Justice
Department would pursue prosecution was good news for Hillary Clinton, it was
not all good. Contrary to the assertions
coming from the Hillary camp, Clinton was far from being exonerated. In brief, Comey meticulously outlined Hillary
Clinton’s wrongdoing and falsehoods:
- · 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.
- · 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.
- · Of the 30,000 e-mails Clinton turned over to the State Department in 2014, 110 e-mails in 52 e-mail chains contained information that was classified at the time the message was sent or received. Eight of those chains contained information that was “Top Secret,” and seven contained “Special Access” intelligence (the most sensitive classification available). These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. Any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.
- · That many of the e-mails may or may not have been “marked” classified when they were received by Secretary Clinton is immaterial: “Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked ‘classified’ in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.”
- · Messages containing classified information were also found among thousands of e-mails not provided by Clinton’s lawyers — who, Comey reports, deleted e-mails that were not in fact “personal” and “cleaned their devices in such a way as to preclude complete forensic recovery.”
- · Clinton set up not just one but “several” personal servers during her time at State. She used several administrators for those servers and used not two (as Clinton claimed) but several personal devices in her communications. None of these servers or devices were supported by full-time security staff.
Andrew C. McCarthy, currently a columnist for the National Review and Commentary,
served as an Assistant United States Attorney for the Southern District of New
York. He is most notable for leading the
1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others.
The defendants were convicted of the 1993 World Trade Center bombing and
planning a series of attacks against New York City landmarks. He also contributed to the prosecutions of
terrorists who bombed US embassies in Kenya and Tanzania. He is no longer in government service;
nevertheless, McCarthy makes a number of arresting remarks on Comey’s conclusions
as a matter of law.
He writes:
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.
McCarthy
continues:
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.
I am not an attorney so I no way of evaluating McCartney’s
points. Indeed, Clinton has plenty of advocates (legal
and otherwise) defending Comey’s resolution against prosecution. Still, one has the sick feeling that Clinton “got
away” with it. Comey’s additional
comment that only contributes to that unease:
“To
be clear, this is not to suggest that in similar circumstances, a person who
engaged in this activity would face no consequences. To the contrary, those
individuals are often subject to security or administrative sanctions.”
Is the cynic, who says this is a case of one law for
the little people and another for the powerful, right? A substantial portion of the American public will
think he is. Several legal authorities contend
that many in government have been fined, demoted, imprisoned or fired for less
under the same law which befouled Clinton.
A majority of Americans already think Hillary Clinton
is untrustworthy and corrupt—that she is a part of an elite who uses the system
to her own personal advantage and enrichment.
In other words, they believe she is a liar and a crook. One may think they are wrong about that; but
the perception is there and Comey’s findings will only augment those views. To many, just on its face, there is only one
reason she would have set up a personal server in the basement of her home and that was to
evade governmental scrutiny and the legal demands for documents by civic
organizations under the Freedom of Information Act.
Unlike many in the media, I don’t think Comey’s decision
not recommend prosecution puts Clinton’s e-mail calamity behind her. The body of Comey’s remarks provides the rich stuff
of opposition political ads. On the
other hand, the Republican Party’s penchant for failing to take up on an
opportunity to advance its cause may come through for Hillary Clinton once
again.
But the past is prologue. Controversy, scandals, charges of conflicts
of interest, accusations of criminal activity, and apparent lying have followed
both Bill and Hillary from the very beginning of their entrance into public
life. Expect no change in that in
another Clinton presidency. There are
more than a few rumors that the FBI is investigating possible connections
between foreign donations to the Clinton Foundation and actions Hillary undertook
in her capacity as Secretary of State.
Nothing may come of that either. But, as one attorney told me with a wick of
his eye, a finding of “not guilty” only means there wasn’t enough evidence or drive
to convict. “Not guilty” doesn’t mean
the same thing as “innocent”.
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