The non-disclosure agreement (NDA) is executed by all who have access to classified and sensitive information. It is beyond doubt that Hillary Clinton Hillary Diane Rodham ClintonBiden leads Trump by 36 points nationally among Latinos: poll Democratic super PAC to hit Trump in battleground states over coronavirus deaths Battle lines drawn on precedent in Supreme Court fight MORE executed one of these while secretary of State. It is also beyond doubt that she violated her NDA, the “special confidence and trust” that such access confers, and the law.

This standard NDA delineates the conditions and prohibitions of disclosing, storing and maintaining classified and sensitive compartmented information (SCI). These documents repeatedly refer to the specific statutes under the laws that govern transgressions of these requirements as well as acknowledgement and awareness of the “special confidence and trust” that this access confers.

The signatory also agrees never to divulge classified or SCI material, to adequately protect classified and SCI material and to return all classified and SCI material in their possession under penalty of law.

ADVERTISEMENT

Last week, the director of the FBI publicly reported during his news conference and his testimony before Congress that Clinton was “extremely careless in ... handling of very sensitive, highly classified information.”

Without saying it directly, the FBI director substantiated a violation of this “special confidence and trust”; extensive violations of the laws delineated in a signed NDA; Clinton's conscious effort to circumvent accountability; her defiant and deceiving statements; and her publicly fabricated facts to quash public scrutiny.

Despite clear evidence, which would culminate in an extensive tour at a government facility in Leavenworth, Kan., for you or me, the director of the FBI failed to recommend any form of accountability for Clinton, now the presumptive Democratic presidential nominee; no prosecution, no loss of access to classified material, no loss of future positions of “special confidence and trust” with the U.S. government. This position was supported by the attorney general and defended during a congressional hearing on July 12.

According to the U.S. Attorney’s Manual, Section 9-27.220, “Grounds for Commencing or Declining Prosecution,” Section A states:

"The attorney for the government should commence or recommend Federal prosecution if he/she believes that the person's conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless, in his/her judgment, prosecution should be declined because:

No substantial Federal interest would be served by prosecution; The person is subject to effective prosecution in another jurisdiction; or There exists an adequate non-criminal alternative to prosecution."

However, Section B further states:

“The potential that — despite the law and the facts that create a sound, prosecutable case — the fact finder is likely to acquit the defendant because of the unpopularity of some factor involved in the prosecution or because of the overwhelming popularity of the defendant or his/her cause, is not a factor prohibiting prosecution.

For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt — viewed objectively by an unbiased fact finder — would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt whether the jury would convict.

In such a case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary and desirable to commence or recommend prosecution and allow the criminal process to operate in accordance with its principles.”

Doesn’t this seems to conflict with the assessment by the director of the FBI that no U.S. attorney would prosecute this case? Doesn’t this conflict with the assessment of the attorney general in her testimony before Congress?

You would think that the director of the FBI, as a former prosecutor, would be familiar with this section of the manual. You would also think the attorney general, as a former U.S. attorney for the Eastern District of New York, would be knowledgeable of this section and comply with the direction and guidance provided in the manual she has cognizance over.

Thomas Jefferson noted in the founding document of the United States, the Declaration of Independence, that the king "has refused his assent to laws, the most wholesome and necessary for the public good” and “has obstructed the Administration of Justice, by refusing his Assent to Laws.”

Alexander Hamilton likewise reflected in No. 15 of the Federalist Papers: “It is essential to the idea of a law that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there is to be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.”

By ignoring the evidence, coupled with the deviation from the direction and guidance in their own manual, has our FBI and Department of Justice “refused [their] assent to law” of the land?

Has their inattention to a “sanction, or in other words, a penalty or punishment for disobedience” in the case of such overwhelming evidence relegated our espionage laws to “advice or recommendation”? Or have we created a class of society that, while not receiving the title, none the less receives the privileges of nobility?

DeMaggio is a retired special agent in charge, and a retired captain in the U.S. Navy. The above is the opinion of the author and is not meant to reflect the opinion of the U.S. Navy or the U.S. government.