I was just a little peeved by a diary over on TOP: ""Comey: Only Facts Matter." No charges." Here is the reply I wrote but never published ...

Only facts matter. What a title. On a diary that is extraordinarily light on details, and groaning-ly heavy with cherry picked talking points. So let's talk for a moment about facts, shall we?

What the FBI Set Out to Do

Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System

“Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.”

What the FBI Found

Evidence that Clinton was “extremely careless”

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information. ” Translation: Evidence of negligence, but no evidence of intent (to be negligent, that is; whether or not her intent was honorable re FOIA is apparently besides the point). “While not the focus of our investigation, we also developed evidence that the security culture of the State Department in general , and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government .” Some persons will be quick to claim, “see everybody else was doing it too”. But who is responsible for the culture of the State Department? Isn’t that person the one who serves as the head of the department and is formally known as the Secretary of State? Question: Does running a department in a way that is not careful with classified information make it acceptable for the head of the department to not be careful with classified information?

Whether or not information is MARKED CLASSIFIED is not actually relevant

“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. ” Translation: Clinton’s previous comments on numerous occasions that nothing she sent was marked classified is and always was a red herring. Clinton was responsible for knowing that the subject matter needed to be handled with special care, regardless of how it was marked, as are all government personnel who interact with such documents.

Whether or not evidence exists that Clinton’s system was hacked is also not actually relevant; lack of such evidence does not indicate that no hacking occurred; it is unlikely that direct evidence would have been left.

“With respect to potential computer intrusion by hostile actors, we did not find direct evidence that Secretary Clinton’s personal e-mail domain, in its various configurations since 2009, was successfully hacked. But, given the nature of the system and of the actors potentially involved, we assess that we would be unlikely to see such direct evidence … Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account .”

What the FBI Recommends

“In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

Translation: we have never before seen a case where classified information was mishandled in a grossly negligent way without that being the clear intent of the accused. [The intent of the accused was most likely not honorable, i.e. she wanted to avoid FOIA, but lucky for her that apparently has no bearing on this matter]. So even though our investigation was focused on

“a federal statute [makes] it a felony to mishandle classified information either intentionally or in a grossly negligent way , ”

we are going to use lack of precedent as an excuse to ignore the large and thoughtless risks that Clinton took regarding matters of national security. Lack of precedent. Nobody prior to Clinton violated the law in this way, and because of that, the FBI recommends that Clinton not be prosecuted. Nice.

Fact: If one is the first person to violate a law in a certain way, then there will of course not be precedent.

Nobody prior to Clinton ever insisted on using a personal email server instead of a government sanctioned solution. Because Clinton was the first to blaze this trail, and because Clinton didn’t understand the risks to national security she was taking with this action, Comey is recommending that she not be prosecuted.

Never-mind that in 2009, no other person would have been allowed to get away with setting up and using a private email server instead of a government sanctioned email solution. Nobody before her had enough political power to intimidate others in the government to disregard the policies and procedures that were in place to prevent non-sanctioned solutions from being used for official business. No other person.

https://www.washingtonpost.com/news/the-fix/wp/2016/07/05/hillary-clinto...