Comey’s Risible Recommendation

National Review Online

Tuesday, July 05, 2016

Hillary Clinton broke the law, but she should not be charged with her crimes. That is the gist of FBI director James Comey’s surreal Tuesday-morning press conference, in which he explained how on hundreds of occasions Clinton and her support staff violated the law during and after her tenure as secretary of state — but announced that the FBI, nonetheless, is not recommending criminal charges.

Comey justified his decision on the grounds that the FBI found no “clear evidence that Secretary Clinton or her colleagues intended to violate laws.” But the applicable law, 18 U.S.C. §793(f), does not call for any. The standard is “gross negligence,” and Comey’s statement gives ample evidence of that.

Of the 30,000 e-mails Clinton turned over to the State Department in 2014, 110 e-mails in 52 e-mail chains contained information that was classified at the time the message was sent or received. Eight of those chains contained information that was “Top Secret,” and seven contained “Special Access” intelligence, the most sensitive classification available. Messages containing classified information were also found among thousands of e-mails not provided by Clinton’s lawyers — who, Comey reports, deleted e-mails that were not in fact “personal” and “cleaned their devices in such a way as to preclude complete forensic recovery.” It turns out, too, that Clinton set up not just one but “several” personal servers during her time at State.

Furthermore, there is no doubt that Clinton’s recklessness put national security at risk. According to Comey, the FBI knows for certain that “hostile actors gained access to the private commercial e-mail accounts of people with whom Secretary Clinton was in regular contact from her personal account” and that she “used her personal e-mail extensively while outside the United States, including sending and receiving work-related e-mails in the territory of sophisticated adversaries.” And, says Comey, it’s entirely possible that our enemies gained access to Clinton’s personal e-mail account, since her use of one was “known by a large number of people and readily apparent.” “Any reasonable person in Secretary Clinton’s position . . . should have known that an unclassified system was no place” for the e-mails she was sending and receiving, Comey said. “None of these e-mails should have been on any kind of unclassified system.”

And yet, according to Comey, “no reasonable prosecutor” would bring a case on the basis of the evidence above. If true, that’s a damning indictment of prosecutors as a class.

Notably, though, “reasonable prosecutors” have brought charges against persons accused of much less. U.S. Navy officer Kristian Saucier faces ten years in prison for taking pictures of the engine room of his submarine with his cell phone. Bryan Nishimura, a naval reservist who served in Afghanistan from 2007 to 2008, was fined and given two years of probation for downloading classified military information to his personal device and taking it back to his California home. And General David Petraeus received a $100,000 fine after he admitted sharing classified information with his mistress.

Given the weight of the evidence, it is clear that the FBI director surrendered to the political pressure surrounding this case. Although he was under no obligation to make a recommendation of any kind, Comey not only made one that flies in the face of the evidence the FBI uncovered; he rationalized this gratuitous recommendation by unilaterally rewriting the applicable law. Comey conceded that Clinton’s conduct was “extremely careless,” which tracks the statute’s requirement of proof of “gross negligence” — then tried to overcome this inconvenience with his disquisition on Clinton’s lack of intent to violate the law or harm the United States, which is wholly irrelevant to a gross-negligence case. Moreover, he conspicuously avoided addressing why Clinton had set up the secret servers; presumably, addressing that question would have required admitting that Clinton was guilty even by his straw-man “intent” standard.

Loretta Lynch is ultimately responsible for the decision whether or not to prosecute, but the idea that she would buck the FBI’s recommendation is risible. She will use it as an excuse to close the case and shuffle the affair — including her shameful part in it — offstage, and the Clinton campaign and its media allies will do the same, in the process transforming Comey’s refusal to recommend charges into a full-throated exoneration of wrongdoing.

At the time of the Petraeus scandal, the Obama administration declared that it had “zero tolerance” for mishandling classified information. Well, not quite “zero.”