Why did he do it? FBI director James Comey laid out an unassailable case for prosecuting Hillary Clinton for mishandling classified material. Then, he recommended against prosecution.
This is baffling. Under the statute (18 U.S.C. section 793(f)), it’s a felony to mishandle classified information intentionally or “through gross negligence.” The evidence, outlined by Comey, is overwhelming.
Clinton sent or received 110 emails in 52 chains containing material that was classified at the time. Eight chains contained top secret information. A few of the classified emails were so marked, contrary to Clinton’s assertion that there were none.
These were stored on a home server that was less secure than a Gmail account. Her communications were quite possibly compromised by hostile powers, jeopardizing national security.
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Comey called Clinton’s behavior “extremely careless.” How is that not gross negligence?
Yet he let her off the hook, citing lack of intent. But compromising national secrets is such a grave offense, it requires either intent or negligence.
So, lack of intent is no defense. But one can question that claim, too. It is safe to assume there was no malicious intent to injure the nation. But Clinton intended to set up an unsecured private server and send classified emails. She received warnings from her department about private email accounts’ dangers.
That’s two grounds for prosecution, one requiring no intent whatsoever. Yet Comey claims no reasonable prosecutor would bring such a case. Nor has one ever been brought.
Not so. Last year, the Justice Department prosecuted naval reservist Bryan Nishimura, who improperly downloaded classified material to personal, unclassified electronic devices.
The government admitted there was no evidence Nishimura intended to distribute the material, but he was sentenced to two years of probation, fined and forever prohibited from seeking a security clearance.
So why not Hillary Clinton? The usual answer is that the Clintons are treated to a different standard. Only little people pay.
Alternatively, the explanation lies with Comey: He gave in to implicit political pressure, the desire to please those in power.
Plausible, but given Comey’s reputation for probity and that he holds a 10-year appointment, I’d suggest a third reason.
When Chief Justice John Roberts used a logic-defying argument to uphold Obamacare, he received similar accusations. My view was that he thought the issue too momentous – and the implications for the country too large – to hinge on a court decision. Especially after Bush v. Gore, Roberts wanted to keep the court from overturning the political branches on so monumental a piece of social legislation.
I would suggest that Comey’s thinking, whether conscious or not, was similar: He did not want the FBI director to end up as the arbiter of the 2016 presidential election. If Clinton were not a presumptive presidential nominee, he might have made a different recommendation.
I think Comey didn’t want to be remembered as the man who altered the course of American political history. And with no guarantee prosecution would succeed, moreover.
I admit I’m giving Comey the benefit of the doubt. But the best way I can reconcile his reputation for integrity with the illogic of his Clinton decision is by presuming he didn’t want to make history.
I don’t endorse his decision. (Nor did I Roberts’.) But I think I understand it.