The Corner

Politics & Policy

Comey’s Was an Extremely Careless Decision

The way in which FBI Director Jim Comey has disposed of Hillary Clinton’s case may convince some that high government officials don’t take seriously the duty to protect classified information. In my experience, that is not true. I’ll elaborate.

When I was on the Senate and House Armed Services Committees, we of course regularly reviewed classified information. The care taken to protect the information was extreme, and apparent to everyone. 

If the information was discussed at a Congressional hearing, the hearing was of course closed; the materials were distributed hard copy (Congressional email is not secure); the classified material was always collected afterwards; cellphones and other devices were forbidden in the room; and notes taken by Members and Senators were collected and either destroyed or stored in a SCIF. (A “SCIF” is a Sensitive Compartmentalized Information Facility, which means a facility with special protections where Top Secret material can be discussed and housed.)

If information was Top Secret, briefings would usually occur in a special SCIF located in the Capitol. I used to refer jokingly to this room as the “cone of silence.” In short, Congressional protocol and culture made it impossible not to be aware that we were handling classified information, and impossible not to be aware that there were procedures for handling it that could not be violated. 

Secretary Clinton would have repeatedly participated in this kind of procedure when she served in the Senate on the Armed Services Committee.

Now, I suppose that a congressman or senator could receive unmarked classified information over an e-mail without realizing it. Some classified information is not that easy to distinguish from open source material. For example, a legislative assistant to an Armed Services Committee Member might send an email to his boss about the capabilities of a new system and might inadvertently include sensitive information about range or weaponry which he had picked up in a classified briefing; and it’s possible that his boss wouldn’t spot the classified nugget in the broader e-mail. 

But what I don’t believe is that any subordinate would regularly send such information without following the protocols unless he was directed to do so or unless he believed that higher authority didn’t care whether he did so.  It would have been a fireable offense in the Congress, and, as Secretary Clinton’s case has shown, might have been a criminal offense depending on intention or the level of negligence.

After Jim Comey made his statement regarding Secretary Clinton’s case, I emailed a former House Armed Services Committee staffer to ask him what would have happened to him, or any staffer, for violating the protocols on classified information.  Here was his response:

I’d have been fired summarily; if I’d been directed to do it, the person who gave the direction also would have been fired.  If I had to go to the bathroom while looking at classified stuff, I would put it away and lock the safe. A colleague — whose office was designated as a SCIF! – nearly lost his job for inadvertently leaving out some documents overnight even though he’d locked his office, which I think had a combo lock. 

So is the culture different in the Executive Branch? Those working at high national security positions in  the DoD, the State Department, and the Intelligence Community receive a deluge of classified information. Their information is supposed to be fully segregated so that classified information is received on the SIPRNet (sometimes referred to as the “high side”) and the NIPRNet (the “lowside” where unclassified communications take place.) 

As far as I am aware, this procedure is strictly followed in the IC and the DoD.

However, the culture at the State Department is more lax — a fact which Comey noted in his remarks. As an example, it’s not uncommon for State Department officials to receive classified information which they are supposed to share with a particular foreign government, and some Foreign Service Officers tend to treat such information as if it were not classified — since they’ve been directed to give it to a foreign government anyway. In addition, the government often overclassifies information, and this may apply especially in the State Department, which routinely reports on conversations with foreign officials and other diplomatic chit chat, where it may really be difficult to distinguish what is classified from what is not.

But none of this helps Mrs. Clinton. This wasn’t a case where Secretary Clinton sent or received one classified e-mail on an insecure system, not realizing it wasn’t classified. It wasn’t a case where she sent or received one classified e-mail knowingly, but believing that it didn’t matter because the information shouldn’t have been classified in the first place. (As the head of the State Department, Secretary Clinton had some discretion to declassify information on her own authority; she has never raised this as a defense, probably because it would require her to admit that she knew she was sending or receiving classified information in the first place.)

This was a case where Secretary Clinton set up, and insisted upon, a system for conducting State Department business which any reasonable person familiar with government would have known was quite likely to lead to the unauthorized transmission of classified information. When a government official has to handle volumes of classified information on a daily basis, refuses to use the secure email systems that are available, and takes no extraordinary steps to protect classified documents in the system upon which she does rely, it is completely foreseeable and perhaps inevitable that security will be compromised.

I don’t fault Secretary Clinton for wanting to have a separate e-mail system where she could send emails not related to government business. She, obviously, has a number of personal and political connections, and I am more sympathetic than many conservatives to her desire not to decapitate those connections, or expose them to Congressional oversight, just because she was serving as Secretary of State.  

But given the amount of classified information which she needed to see, she should, at a minimum, have used, and insisted upon her subordinates using, the secure email system to transact State Department business, or at least when transmitting classified information. 

It’s one thing for a high public official to want to protect her own personal and political secrets; it’s another thing to do so in a way that puts at high risk the secrets of her country.

Director Comey called Mrs. Clinton’s actions “extreme carelessness” but not “gross negligence.” If the two are different, I can’t see how; I can’t see how Comey could in good faith have thought that, in his words, “no reasonable prosecutor” would believe that proof of extreme carelessness would not be proof of gross negligence sufficient to convict Mrs. Clinton under the relevant statutes. 

The law uses many terms of art and is often obscure. But Jim Comey is not a fool, and when he explicitly said that Mrs. Clinton was guilty of extreme carelessness but not gross negligence, he must have known that lawyers and lay people alike would scratch their heads trying to understand the difference

I suspect that Comey made his recommendations on political grounds — not in the narrow or venal sense of “political”, but in the sense of what the French call “raison d’etat.”  Comey wanted to spare the country the ordeal of trying as a criminal one of the major party nominees for President. That is a legitimate consideration, but it is not a consideration that Mr. Comey, as a law enforcement officer, should have taken into account. If it is true that overriding public interest justified not prosecuting someone who should under the law be prosecuted, that was a decision for the political authorities – in this case, the attorney general or the president — to make.

Over the years, I have known many fine career public servants, people who never ran for office, but who rose to appointive positions of great influence.  The one common failing I have noted among these servants is that they try to shape what is supposed to be their expert opinion in a way they believe allows their political masters to avoid tough political choices. I believe that is what Jim Comey did here.  

In short, Comey made a decision for reasons that were above his pay grade. In so doing, he may have sincerely thought that he was helping his country. But I greatly fear that what he has done is contribute to the growing conviction, and not just among Republicans, that our laws do not apply to the powerful, that our institutions are hopelessly corrupt, and that there are no honest men left in the government of the United States.

Jim Talent, as a former U.S. senator from Missouri, chaired the Seapower Subcommittee. He is currently the chairman of the National Leadership Council at the Reagan Institute.

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