Wednesday, July 06, 2016

Clinton Makes the FBI’s Least-Wanted List

Explaining why he wasn’t recommending prosecution, Director James Comey instead showed that charges would have been justified.

By Michael B. Mukasey
July 5, 2016

President Obama embraces Hillary Clinton at a campaign rally for Clinton in Charlotte, NC on July 5, 2016. (AP/Chuck Burton)

Federal Bureau of Investigation Director James Comey opened and closed his statement to the press Tuesday with expressions of gratitude and pride to be associated with the bureau. His description of FBI agents’ work on the Hillary Clinton email investigation showed why he feels that way. Whether the rest of his statement—explaining why he wasn’t recommending prosecution of Mrs. Clinton—should make the feeling mutual is an open question.
The agents had to reconstruct thousands of emails from a series of private servers used and abandoned over the years, some of them turned into confetti in the process. The FBI agents also had to tease out from the files of other government employees emails that they might have received from or sent to Mrs. Clinton during her tenure as secretary of state, and weigh their importance.
Unlike Mrs. Clinton’s own lawyers—who decided which emails to produce by reading just the headings—the agents read each of the many thousands of emails and fragments that passed through their hands. The job was made no easier by the decision of those lawyers to obliterate the email record they had examined, making it impenetrable to forensic examination. All in all, these tasks of the agents bear comparison with the labors of Hercules.
Moreover, that the FBI seems to have limited its inquiry to the two federal criminal statutes mentioned in Mr. Comey’s statement appears entirely reasonable. The level of intent and specificity necessary to prove purposeful intent to destroy government records, or intent to obstruct justice—even assuming such activity was afoot—would have required testimony by an actively cooperating participant. Plainly, no such cooperation was forthcoming.
That left the two statutes discussed in Mr. Comey’s statement—one a felony, the other a misdemeanor—and here the announced decision is harder to understand.
It is a felony for anyone entrusted with lawful possession of information relating to national defense to permit it, through “gross negligence,” to be removed from its proper place of custody and disclosed. “Gross negligence” rather than purposeful conduct is enough. Yet Mr. Comey appears to have based his recommendation not to prosecute on the absence of “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”—though he did say in the same sentence that there was “evidence that they were extremely careless in their handling of very sensitive, highly classified information.”
As an example of the kind of information at stake, he described seven email chains classified at the Top Secret/Special Access Program level. These were the emails that the government had said earlier are so sensitive that they will never be disclosed publicly. Mr. Comey went further, citing “evidence to support a conclusion that any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place for that conversation.” To be “extremely careless” in the handling of information that sensitive is synonymous with being grossly negligent.
And what of the finding that the investigation did not disclose “clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information”? Even the felony statute requires no such evidence, and no such intent.
The misdemeanor involves simply the knowing removal of classified documents to an unauthorized location. That is the statute to which David Petraeus, the former U.S. Army general and Central Intelligence Agency director, pleaded guilty in 2015. (He had disclosed classified documents to his biographer/mistress, who also had top-secret clearance, returned the information to him and never disclosed it in his biography or elsewhere.)
Mr. Comey mentioned three considerations prosecutors weigh in considering charges: the strength of the evidence, “especially regarding intent”; “the context of a person’s actions”; and “how similar situations have been handled in the past.”
Criminal intent of the usual sort, as noted, is not a requirement of either statute.
The only reference to context in the statement—other than repeated references to the extreme secrecy of the information—is the disclosure that the “security culture” of the State Department pertaining to email in particular was “generally lacking in the kind of care . . . found elsewhere in the government.” If that is meant to suggest that Mrs. Clinton was the victim of a bad culture, it seems fair to point out that she headed the agency where it existed.
The “similar situations in the past” in which prosecutions were brought were said to be limited to those involving “clearly intentional and willful mishandling of classified information” or “vast quantities” of information disclosed with an inference of intent; or evidence of disloyalty or obstruction of justice.
Gen. Petraeus’s case included messages showing he knew that the information was being mishandled, and initial misrepresentations to the FBI, although neither is required under the misdemeanor statute. And although the FBI may not have been involved, there are indeed reported felony prosecutions of soldiers for putting copies of classified documents in a gym bag and then not returning them out of fear of discovery; placing classified documents in a friend’s desk drawer and forgetting them; tossing documents meant to be destroyed in a dumpster rather than in the appropriate facility.
The FBI director said the investigation of Mrs. Clinton was a case for “unusual transparency,” and the transparency in Tuesday’s exercise was certainly unusual. Mr. Comey’s disclosure of his recommendation outside the context of any discussion with Justice Department lawyers was anomalous. What is supposed to happen in a matter like this is, as the director mentioned, a “prosecutive” decision—i.e., a decision made by prosecutors. It is not an investigative decision. Investigators are supposed principally to gather facts.
Mr. Comey didn’t explain why, with evidence clearly fulfilling the requirements of the two statutes involved, no reasonable prosecutor would bring a case—except for the director’s inaccurate assertion that it had never been done before.
And finally, although there was transparency about process, there was no discussion of underlying facts, only conclusions. It may be that some day there will be the usual transparency: disclosure of facts. That day was not Tuesday, and it is little wonder that many in and out of government were left both puzzled and dismayed.
Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).

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