“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”
– FBI Director James Comey, 5 July 2016, announcing that the FBI had concluded its investigation of Hillary's handling of our nation's classified information and would not recommend that DOJ file charges (full text here).
I could not believe this morning's press conference. First, FBI Director James Comey laid out facts establishing that Hillary Clinton violated our laws regarding classified information. Then, he said that he would not recommend prosecution. Good God, we are now living in a banana republic. The politically connected are above the law.
Hillary Clinton set up a private e-mail system in order to hide her activities while Secretary of State from being made public pursuant to FOIA requests and legal process. She sent and received classified information across her private system, she stored the information on her private system, and the system was not only subject to hacking, but being run by people almost certainly without the security clearances to allow them such access. She should be in jail for life plus several centuries. Had anyone else done this, they would be.
What Comey did to exonerate Hillary was make up his own set of “straw men” laws, then burn them down. Let me explain.
The facts Comey laid out in his press conference can only be described as damning. They don't present a judgment call, they present jury questions under at least three statutes.
Here are the facts that Comey laid out in his speech. All are quotations, with my comments in brackets:
1. From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.
2. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent. [I have never seen information “up-classified” during my decade of working with classified information. I suspect that these were all emails sent from foreign officers directly to Clinton for her eyes only, and that the State Dept. is taking the position that, while the information in them is clearly sensitive, Clinton – who should have classified them – did not. Thus they cannot serve as the basis for prosecution. I find that highly questionable, but at this point, to quote a scurrilous as of yet unconvicted felon, “what difference does it make?”]
3. The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.
4. “We found seven e-mail chains concern matters that were classified at the Top Secret/Special Access Program level when they were sent and received. [We knew of at least two e-mail chains that included this information. The investigation shows it was worse than we thought.]
5. These chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails from others about the same matters. [That kills Hillary's best defense, that these email ended up on her system without her knowledge out of mere negligence]
6. There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation. [In other words, Hillary's good heart, empty head defense is bullshit.]
7. In addition to this highly sensitive information, we also found information that was properly classified as Secret by the U.S. Intelligence Community at the time it was discussed on e-mail (that is, excluding the later “up-classified” e-mails).
8. None of these e-mails should have been on any kind of unclassified system, but their presence is especially concerning because all of these e-mails were housed on unclassified personal servers not even supported by full-time security staff, like those found at Departments and Agencies of the U.S. Government—or even with a commercial service like Gmail. [Comey fails to address whether the people responsible for and with access to these servers had adequate security clearances. That is an important point that he ignored.]
9. [W]e assess it is possible that hostile actors gained access to Secretary Clinton’s personal e-mail account. [So much for the claim that the absence of evidence means that she was not hacked. So what happens if Iran, Russia, China, and a host of other nations now have all of Hillary's e-mails, even those that the FBI was not able to reconstruct from the “wiped” servers? And what if those emails contain damning statements about which she could be blackmailed?]
10. 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. [Thank you, Director Comey, for making clear a point that everyone who has ever held a security clearance understands, but which Hillary deliberately tried to obfuscate for the many ignorant of how the system operates]
At least Comey put the lie to Clinton's many claims regarding this email system. Hillary's claim that the information was not marked classified was always a red herring to fool those many useful idiots who wanted to believe her innocent. Further, Comey made clear that anyone in Hillary's position knew or should have known that the information they were discussing was sensitive and should have been handled as classified material. Indeed, with those two issues settled, the question of whether Hillary should be prosecuted should have been a slam dunk.
Yet Comey declined. Why?
Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. Prosecutors necessarily weigh a number of factors before bringing charges. There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past.
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.
Comey misstated the applicable laws. Under his formulation of new security law, Hillary could only be convicted if she was intentionally divulging our national secrets to a foreign party or the press. The fact that she broke every actual law hundreds if not thousands of times, that she did so in order to hide her activities in violation of other laws, and the fact that she destroyed several thousand government records is meaningless to Comey. That is not the **** law.
Let's match the facts up with the laws Hillary violated. The laws at issue are:
18 USC 793 – Gathering, Transmitting or Losing Defense Information
(f) Whoever . . . having lawful possession or control of any document . . . or information, relating to the national defense, (1) – 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, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior office ------ Shall be fined under this title or imprisoned not more than ten years, or both.
18 USC 1924 - Unauthorized removal and retention of classified documents or material
(1) Whoever, being an officer . . . of the United States, and, by virtue of his office . . . becomes possessed of documents or materials containing classified information of the United States, 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
18 USC 1519 - Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Let's match facts to law now.
Under 18 USC 793(f), Hillary had lawful possession of top secret documents which, by definition, relate to national defense. According to Comey, any reasonable person in her position would have known this. And yet she uses her private system to send and receive e-mails discussing this information. In addition, she stored those emails on a private server that was not the “proper place of custody.” She is guilty of violating this statute more than eight times. Whether she intended to make the information available to foreign nations to the detriment of our nation is wholly irrelevant. The standard is whether she was grossly negligent. And as pointed out below, the purpose of that standard is to make sure that people entrusted with our nation's secrets take required measures to safeguard them. As Comey states explicitly, Clinton did not.
Under 18 USC 1924 (1), with Comey saying that Hillary knew that she was dealing with classified information and that markings are irrelevant to this law, Hillary doesn't even have a bare patina of a defense against this statute. She intentionally retained classified information at an unauthorized location. Period.
Then there is 18 USC 1519. Oh my word. Comey doesn't give us enough information to fully assess this one, but if she destroyed tens of thousands of documents that were in fact government records, the likelihood of her being in violation of this statute is extremely high. Indeed, Comey appears to ignore the interplay between Clinton's actions, the Benghazi committees that were seeking documents while Hillary was still in office, and the various FOIA law suits. If any of those emails were responsive to the Congressional investigations or the FOIA lawsuits, Hillary should be facing multiple felony counts. I would be amazed if Hillary does not stand in violation of this statute hundreds, if not thousands of times over.
Bottom line, we now live in a nation that the progressive left has turned into a banana republic. Every day this woman spends outside of a jail cell is an affront to justice and the rule of law in this nation.
Looking around the internet, I see several others have reached similar conclusions.
Austin Bay: James Comey Sells Out
Today, the FBI sold out the Rule of Law in America. After describing clear evidence of extensive mishandling of classified national security information, FBI Director James Comey announced that the FBI will not recommend indicting former secretary of state Hillary Clinton. This is naked crony government, ugly and exposed. Comey’s decision will go down as one of the government’s worst assaults on truth in its War on Honesty.
Today’s press conference was, in many respects, an exercise in legal and cognitive dissonance. Comey acknowledged Clinton sent and received Top Secret emails that “any reasonable person” understands not to discuss on an unclassified system.
Red flags? Excuse me, sir—that’s a crime
Andrew McCarthy: FBI Rewrites Federal Law To Let Hillary Off The Hook
There is no way of getting around this: According to Director James Comey (disclosure: a former colleague and longtime friend of mine), Hillary Clinton checked every box required for a felony violation of Section 793(f) of the federal penal code (Title 18) . . .
In essence, in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.
Paul Mirengoff (Powerline): "Comey simply ignored the statutory standard he laid out. A first year associate at a law firm wouldn’t dare present an analysis like this."
Scott Johnson (Powerline): "Comey’s additional assertion that the applicable laws have never been enforced under these facts is inexplicable. Have we ever had a case remotely similar to this one? What we have here is Comey comity with the Clinton exception to the criminal laws."
Chris Cizzilla (Wapo): Hillary Clintons E-Mail Problems Might Be Even Worse Than We Thought
FBI Director James B. Comey dismantled large portions of Clinton's long-told story about her private server and what she sent or received on it during a stirring 15-minute news conference, after which he took no questions. While Comey exonerated Clinton, legally speaking, he provided huge amounts of fodder that could badly hamstring her in the court of public opinion. . . .
It’s hard to read Comey’s statement as anything other than a wholesale rebuke of the story Clinton and her campaign team have been telling ever since the existence of her private email server came to light in spring 2015. She did send and receive classified emails. The setup did leave her — and the classified information on the server — subject to a possible foreign hack. She and her team did delete emails as personal that contained professional information.
Those are facts, facts delivered by the Justice Department of a Democratic administration. And those facts run absolutely counter to the narrative put forth by the Clinton operation: that this whole thing was a Republican witch-hunt pushed by a bored and adversarial media. . . .