James Comey, the director of the FBI, announced Tuesday that 2,113 classified e-mails were discovered among Hillary Clinton’s multiplicity of servers and devices. As Clinton mishandled them, 113 were classified, including 37 Secret e-mail chains and eight labeled Top Secret. According to the Associated Press, “Key assertions by Hillary Clinton in defense of her email practices have collapsed under FBI scrutiny.”
Despite Comey’s extensive evidence of Clinton’s “extremely careless” abuse of state secrets, he nonetheless concluded that “no reasonable prosecutor would bring such a case.”
Several reasonable prosecutors disagree.
‐ “A reasonable prosecutor would have brought this case — no doubt,” former U.S. attorney Rudolph W. Giuliani told Fox News Channel’s Kimberly Guilfoyle. “I don’t have any doubt I could win this case in front of a jury.”
The former New York City mayor recalled his own experiences with classified data.
“I worked in the Justice Department for 15 years,” Giuliani said. “For four or five of those years, I had a high security clearance. And I would approve FISA [Foreign Intelligence Surveillance Act] applications for national security. I never left the Justice Department with them. I stayed until 4:00 in the morning, and I locked them in the safe. If I had done something like this, there is no doubt in my mind . . . I would have been indicted.” Giuliani added, “It is so discouraging for someone who loves the Justice Department to see a decision like this.”
‐ “As a former federal prosecutor with more than 350 criminal cases under my belt, I take serious issue with Director Comey’s conclusions,” said Sidney Powell, a former federal prosecutor in Texas and Virginia. “The applicable statute does not require specific intent to violate the law. Indeed, the only real issue is whether Secretary Clinton allowed classified information to be transmitted to her personal e-mail account. That alone is a felony count for each e-mail so transmitted — whether marked classified or not.”
‐ Powell, author of Licensed to Lie: Exposing Corruption in the Department of Justice, continued, “If she didn’t know that the intelligence she was receiving was or should be classified, she is far too stupid to be president, and in any event, her security clearance should be permanently withdrawn.”
‘As a former assistant U.S. attorney, it looks to me like it would’ve been an easy case to win.’ —Faith Ryan Whittlesey
Powell lamented the broader impact of Comey’s decision. “This is a horrible day for the rule of law in our country,” she told me. “I’ve no doubt that good men and women are in prison now for offenses far less egregious than those committed by Mrs. Clinton, who set up her personal server for the sole purpose of avoiding the law and with callous and deliberate disregard for national security.”
‐ “As a former assistant U.S. attorney, it looks to me like it would’ve been an easy case to win,” Faith Ryan Whittlesey said. The one-time federal prosecutor in Pennsylvania advised President Ronald Reagan and was his envoy to Switzerland. She added, “As a former U.S. ambassador . . . if I had handled classified material in such a careless manner, exposing the material to the prying eyes of possible actors with interests adverse to those of the U.S., I certainly would have been prosecuted.”
‐ Most commentary since Tuesday has addressed the inexplicability of Clinton avoiding a felony indictment, even though Comey called Clinton’s behavior “extremely careless” — a synonym for “gross negligence,” the evidentiary threshold for conviction under the federal Espionage Act — 18 U.S. Code § 793 (f).
Former attorney general Michael Mukasey explained in Wednesday’s Wall Street Journal what little it would have taken to indict Hillary Clinton on misdemeanor charges.
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.)
Mukasey also described the fate of some who are less connected than Clinton including “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.”
‐ “A county D.A. could have prosecuted this case successfully,” former Justice Department official J. Christian Adams said on Fox News’s Hannity. “Apparently, we’re not going to see whether our Justice Department can.” Adams also told me that Comey’s recommendation was “No surprise. This DOJ was never going to prosecute the presumptive [Democratic] nominee.”
‐ “I have a tremendous amount of respect for FBI Director Comey,” said Eric Siddall, vice-president of the Los Angeles Association of Deputy District Attorneys. “I do not think he is a political animal, and I believe he is a man of integrity and made his decision based upon legitimate law-enforcement purposes. I think it is dangerous, unproductive, and fundamentally unfair when the media and the general public attempt to scrutinize a law-enforcement agency’s decision to proceed with the filing of a case. There are many factors in this calculus. We are not privy to all of them.”
‐ Rudy Giuliani worries that Comey handcuffed himself when he let Hillary off the hook.
“I don’t know how he ever, ever, is going to be able to charge anybody in the CIA or FBI that is extremely careless with top-secret information, if he isn’t charging Hillary Clinton,” Giuliani said. “This is the special exception for the Clintons.”