FBI director James Comey (File photo: Joshua Roberts/Reuters)

The FBI built a solid case for prosecuting Hillary Clinton’s criminal misdeeds — but then inexplicably decided not to recommend her prosecution.

Like Andy McCarthy, I worked with Jim Comey at the Department of Justice. Jim has always been very cordial and accommodating to me, including supporting some charity fundraising I have done. He is not a close personal friend, but he is someone I worked closely with at times, and have always regarded warmly. With that said, it is clear to me that Director Comey blinked under pressure.


Comey’s Tuesday morning press conference read like the opening statement for the prosecution. He dismantled several of the lies that Hillary’s camp has propounded over the last 16 months. As to her claim that there were never any classified materials or classified markings in her e-mail, he concluded that 110 e-mails in 52 e-mail chains contained information that was classified at the time they were sent. Eight of those e-mail chains were classified top secret and seven contained special-access (or “SCI”) material, the most sensitive secrets our government protects. Some of those classified e-mails — albeit a “very small number” (the exact number is undisclosed) — “bore markings that indicated the presence of classified information.” With respect to the SCI material, Comey reasoned that “any reasonable person in Secretary Clinton’s position or in the position of those with whom she was corresponding about the matters should have known that an unclassified system was no place for that conversation.” None of these e-mails “should have been on any kind of unclassified system.”

He all but concluded that Hillary had been hacked by foreign powers — or at least substantially increased the risk of such hacking with her reckless handling of her e-mail system. The FBI did not find “direct evidence” of successful hacking, but given the nature of the system and the sophistication of the hackers, it was “unlikely to see such direct evidence.” Nevertheless, the FBI knows that “hostile actors gained access to the private commercial accounts of people” — such as Sidney Blumenthal — “with whom the Secretary was in regular contact from her personal account.” That risk, of course, would have existed with an official account as well. But the director also noted that her use of a personal e-mail account to conduct foreign business “was both known by a large number of people and readily apparent,” which substantially increased that risk. Finally, and most damningly, she “used her personal e-mail extensively while outside of the United States, including sending and receiving worked-related e-mails in the territory of sophisticated adversaries.” This merely confirms what was already public, including e-mail chains in which her aides talked of security incidents while traveling in China. As a result, the FBI determined it “is possible that hostile actors gained access” to her official e-mails.


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Comey also debunked the notion that Hillary had turned over all of her official e-mails to the State Department when requested. “Several thousand” undisclosed e-mails were identified by the FBI, culled either directly from her server or from other sources such as other State Department employees’ e-mails. As we’ve discussed in these pages, federal law makes it a felony for the official custodian of a federal record to intentionally and unlawfully conceal, alter, or delete that record. Comey concluded there was nothing nefarious in those deletions, reasoning that there was “no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them in some way.” But the very existence of the server evidences deliberate concealment. Comey provided no explanation for Clinton’s reasons behind the server itself. Nor did he seek to address the legality of Clinton’s exclusive use of that server to conduct official business out of the gaze of public scrutiny.


#share#The greatest shortcomings of Comey’s public comments, though, were in his conclusion that “no reasonable prosecutor” would bring a case for mishandling of classified information. Comey himself made the case for such a prosecution. The investigation “looked at whether there is evidence that classified information was improperly stored or transmitted on that personal system in violation of a federal statute that makes it a felony to mishandle classified information either intentionally or in a grossly negligent way.” Here, Comey referred to 18 U.S.C. § 793(f), which criminalizes conduct by which the recipient of national-defense information “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.”


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Comey found all of the factual predicates for this statute satisfied: 1) Clinton and her staff mishandled more than 100 classified e-mails, some containing information classified at the highest levels and some containing markings demonstrating classification; 2) any reasonable person in Clinton’s position would have known that her e-mail system was not where those discussions should take place; and 3) most important (and perhaps most obviously), Clinton was “extremely careless” in doing so. Gross negligence and “extreme carelessness” are interchangeable terms, something Comey obviously knows. The result of that extreme carelessness was to substantially raise the risk of exposing our national secrets to foreign powers.


Yet he found no violation of 18 U.S.C. § 793(f). Why? According to Comey, all the past cases in which similar transgressions were prosecuted involved “some combination of clearly intentional or willful mishandling of classified information or vast quantities of information exposed in such a way to support an inference of intentional misconduct or indications of disloyalty to the United States or an obstruction of justice.” One could seriously debate whether that standard could be met here. But even if it couldn’t, Comey simply ignored — or rewrote — the plain language of § 793(f), which does not require any showing of criminal intent. There is a reason that Congress did not require a showing of intent in this provision of the Espionage Act: to protect against even inadvertent disclosure or risk of disclosure of protected information where the perpetrator demonstrated gross disregard for the national security. How Comey could conclude that “no reasonable prosecutor” could make this case is inexplicable in light of his own words.

#related#Even where the statutes prohibiting mishandling of classified information require intent, it is not exclusively intent to harm the national security (though that does play into some relevant statutes). Comey noted that his investigation looked at “a second statute, making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.” That statute is 18 U.S.C. §1924(a), which provides that any federal official who “becomes possessed of documents or materials containing classified information of the United States, [and] knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both [emphasis added].” Section 1924(a) does not require an intent to profit, to harm the United States, or otherwise to act in a manner disloyal to the United States. It only requires “intent to retain” classified documents at an unauthorized location, something Comey’s own comments suggest was the case here. Again, the case for prosecuting in light of these facts was more than simply fairly debatable it was quite strong.


Director Comey’s press conference was a study in contradiction. But it was also an example of how divorcing an inquiry from its context leads to indefensible results. Comey found that Hillary Clinton quite plainly mishandled classified information and exposed the United States to a heightened risk of national-security harm. But he forgot to explain the reason she did so — to keep her business, both public and private, beyond the reach of public scrutiny. She did all of this to avoid congressional oversight, FOIA requests, and accountability to the public. Comey’s decision simply ensures that she was successful in avoiding that accountability.