Law & the Courts

Comey Sticks to His Claim That Hillary Lacked Criminal Intent

FBI director James Comey testifies on Capitol Hill, May 3, 2017. (Reuters photo: Kevin Lamarque)
Though the evidence that she knew what she was doing when she mishandled classified information is clear.

In his testimony today before the Senate Judiciary Committee (on which I’ll have more to say in an upcoming column), FBI director James Comey has stuck by his claim that declining to bring charges against Hillary Clinton for mishandling classified information was the right call because proof of intent was lacking. This is unsurprising. The director has repeated this analysis many times. It hasn’t gotten better with age, but given his insistence that “no reasonable prosecutor” could possibly disagree with him, I’m not holding my breath waiting for him to reverse himself.

In my column over the weekend, discussing a lengthy New York Times report about the Clinton e-mails investigation, I briefly rehashed why Comey is wrong about this:

This is a convoluted part of the story, stemming from the Justice Department’s effective rewriting of the applicable statute to avoid charging Clinton. As the Times tells it, the Justice Department and the FBI knew that to charge Clinton with a crime, it would not be enough to prove she had been “sloppy or careless”; instead, “they needed evidence showing that she knowingly received classified information or set up her server for that purpose.”

As I have contended before, this claim is specious on multiple levels. Subsection (f) of the pertinent statute (the Espionage Act, codified at Section 793 of Title 18, U.S. Code) makes it a felony to mishandle classified information “through gross negligence” — i.e., proving Clinton was sloppy or careless (or “extremely careless,” to use Comey’s own description) could have been sufficient. But beyond that, Clinton willfully set up a private network for the systematic handling of her State Department-related communications, in violation of federal record-keeping requirements of which she was well aware, and under circumstances in which she (a former senator who served for years on the intelligence Armed Services committee) was a sophisticated longtime consumer of classified information. She was keenly aware that her responsibilities as secretary of state would heavily involve classified information — whether it was “marked” classified or “born classified” because of the subject matter.

It is irrelevant whether Clinton’s purpose was to transmit or store classified information on the private, non-secure server; prosecutors are not required to prove motive. The question is whether she knew classified information would end up on the server, and her set-up made that inevitable.

That is, Clinton could have been prosecuted either for willfully mishandling classified information or for doing so through gross negligence.

As I elaborate in the column, the Times did not address the controlling statute in its 8,000-word article. Instead, the story was that Clinton could not be charged because of the purported Petraeus precedent. We are to believe that the evidence of former CIA director David Petreaus’s criminal intent was far stronger than Clinton’s, yet he was not charged with the felony mishandling of classified information (he was permitted to plead guilty to a misdemeanor); ergo, it would have been an abuse of prosecutorial discretion to charge Clinton with the felony.

I addressed this in the column as well:

This line of reasoning is fatuous — and it’s another instance of the Justice Department adopting Clinton campaign cant. Petreaus shared his classified diaries with a single person, a paramour who actually had a security clearance (albeit not one high enough to view what she was shown). Clinton’s offense was more extensive in duration and seriousness.

Assuming the accuracy of the Times’s account, Comey is quite right that Petraeus should have been indicted on much more serious charges (as I have contended). But the Justice Department’s dereliction in Petraeus’s case was hardly a justification for giving Clinton a pass on a more egregious offense that, unlike Petraeus’s, (a) almost certainly caused the compromise of government secrets to foreign intelligence services and (b) resulted in the destruction of tens of thousands of government records — a separate felony. Clinton’s misconduct should have been prosecuted under the governing law, not excused based on the sweetheart plea deal Petraeus got.

All that said, we’re told the FBI thought it might be able to get over the purported Petraeus hurdle if it could find e-mails to and from Clinton’s old BlackBerry. Because she was using this device right before she switched to the homebrew server, the theory was that those lost e-mails might contain some smoking-gun declaration of her criminal intent in setting up the server system. It’s as if, in a drug case, it’s not enough for agents to have the bag of heroin they found in the suspected trafficker’s house; to prove intent, you apparently also need an e-mail in which the trafficker says, “Gee, I hope there’s enough heroin in that bag I was planning to sell.”

Hillary Clinton is a Yale-educated lawyer who worked in government for many years. She was a very active first lady during her husband’s eight-year presidency — mainly in the White House, where the handling of classified information is a major issue, even for low-level staffers. I mistakenly said in the weekend column that she had served on the Intelligence Committee in the Senate; but my memory lapse was due to having previously said, correctly and on many occasions, that her assignment to the Armed Services Committee during years when the nation was at war made her a heavy consumer of highly classified national-defense information.

When she became secretary of state, she was briefed on the rules governing the handling of classified information, which she well knew would feature prominently and persistently in her duties. In her memoir, Hard Choices, Mrs. Clinton goes on at length about the exacting security procedures she knew she had to follow in handling classified information (e.g., she needed to read classified documents under an “opaque tent” in her hotel rooms while on travel; and it was foremost in her mind that State Department officials are “frequently the target of cyberattacks”).

When she was interviewed by the FBI at the close of its investigation, Clinton made laughably false statements regarding her familiarity with classified-information protocols, including the whopper that she did not know what “(C)” meant — even though it is the designation for information classified at the “confidential” level, ubiquitous in classified documents. Prosecutors routinely use false exculpatory statements to prove mens rea in a criminal case. (Relatedly, Clinton also told the FBI she could not recall being briefed about retaining government records and handling classified information even though she signed a form acknowledging that she had been so briefed on January 22, 2009.) Moreover, in newly released book Shattered, about the 2016 Clinton campaign, authors Jonathan Allen and Amie Parnes relate the story of how Clinton directed a trusted aide to download the server from her failed 2008 campaign in order to peruse stored staff e-mails so she could figure out who leaked to the press.

Patently, Hillary Clinton was well aware of (a) the highly classified subject matter of communications that would inevitably be passing through the private e-mail system she set up for State Department business, in violation of statutes and government rules; (b) the fact that e-mails are stored on servers; (c) the fact that the communications facilities and devices used by State Department officials are routinely targeted in cyberattacks by foreign intelligence services and other hostile actors; and (d) the rules for the proper handling of classified information (and potential penalties for mishandling it). Consequently, her mishandling of classified information was knowing and intentional, as well as grossly negligent. Many reasonable prosecutors would salivate at the prospect of taking such a case to court, especially if they knew that Clinton was going to run with a “lack of intent” defense.


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